r 

JMIZIL 
19*0 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 

Gift  of 
binder  -Moss  Co. 


LIQUOR  PROHIBITION 


BY 

ARCHIBALD  DOUGLAS  DABNEY,  B.  L. 

'M 
Judge  of  the  Corporation  Court,  Charlottesville,  Virginia ;    formerly  Commonwealth's 

Attorney,  United  States  Commissioner,  and  a  member  of  the  Editorial 
Staff  of  The  Michie  Company,  Law  Publishers 


The  Michie  Company,  Law  Publishers 

Charlottesville,  Virginia 

1920 


COPYRIGHT,  1920 

BY 
THE  MICHIE  COMPANY 


T 


PREFACE. 


This  book  is  not  a  treatise  on  the  Prohibition  of  Intoxicating 
Liquors,  but  a  mere  collation  of  the  decisions  construing  swch 
statutes. 

It  is  intended  to  arrange  these  decisions  in  as  logical  a  man- 
ner as  possible  with  reference  to  the  various  provisions  of  the 
National  Prohibition  Act,  and  to  so  digest  them  as  to  give  a 
ready  reference  to  the  reported  cases. 

In  the  endeavor  to  finish  the  book  as  quickly  as  possible  after 
the  law  became  effective,  most  valuable  assistance  was  given 
by  Mr.  James  F.  Minor,  author  of  Minor  on  Workmen's  Com- 
pensation Laws,  and  by  Mr.  Homer  Ritchey,  author  of  Ritchey 
on  Federal  Employers'  Liability  Act,  both  of  the  Charlottes- 
ville,  Virginia  bar,  to  each  of  whom  grateful  appreciation  is 
given. 

A.  D.  DABNEY. 


67OK87 


Table  of  Cases  Cited 


Aaron  v.   State,  18  Ariz.  378,  161  Pac.  881 121,  336,  339 

Abbott  v.  State,  11   Ga.  App.  43,  74  S.  E.  621 87,  410,  458 

Acme    Brewing    Co.,    v 91  175 

Adams    Exp.,    Commonwealth   v 154 

Adams  Exp.  Co.  v.  Commonwealth,  154  Ky.  462,  157  S.  E.  908, 

48    L.    R.    A.,    N.    S.,    3'42 118 

Adams  Exp.  Co.  v.  Commonwealth,  160  Ky.  66,  169  S.  W.  603 

130  155 

Adams    Exp.    Co.  v.    Commonwealth,   174    Ky.   296,    192    S.    W 

56     313 

Adams  Exp.  Co.  v.  Commonwealth,  177  Ky.  159,  197  S.  W.  630  380 
Adams    Exp.    Co.   v.    Commonwealth,    177   Ky.   449,    197    S.    W. 

957     239,  452 

Adams  Exp.  Co.  v.  Commonwealth,  178  Ky.  59,  198  S.  W.  556. 

351,  3«1 

Adams    Exp.    Co.   v.   Commonwealth,   182    Ky.   748,   207    S.    W. 

482,    483    284 

Adams  Exp.  Co.  v.  New  York,  232  U.  S.  14,  30,  34  Sup.  Ct.  203, 

58    L.    Ed.    483 90 

Adams  Exp.  Co.  v.  Young,  184  Ky.  49,  211  S.  W.  407 330 

Advertiser  Co.  v.  State,  193'  Ala.  418,  69   So.  501 162 

Advertiser  Co.,    State   v 164 

Agalos,    State   v 86,    212,  355 

Ahart,  Ex  parte 138,  239 

Ahern,  Commonwealth  v 447 

Ah   Sin  r.   Wittman,   198  U.   S.   500,  504,  25   Sup.  Ct.  756,  49   L. 

Ed.    1142,    1144 61 

Alderete,    Ex  parte 196 

Alderman,    State    v 120  326 

Alexander  v.  State  (Tex.  Cr.  App.),  204  S.  W.  644,  645 113, 

260,    313',    327,  415 

Allen,    People  v 327   351,  411 

Allen,    State    v 275 

Allison  v.   Hern,  102   Kan.  48,   169   Pac.   187   229 

Allison  v.  State,  1  Ala.  App.  206,  55  So.  453 288,  356,  398,  403,  407 

Allison  v.   State   (S.   D.),   167   N.  W.  402 252 

Allston,    State    v 122 

Alton   r.    Salley    (Mo.),   215   S.    W.   241 173,  459 


vi  TABLE  OF  CASES  CITED 

American   Exp.  Co.  v.   Commonwealth,    171    Ky.    1,    186   S.    W. 

887  124,  138,  161,  400 

Amonett  v.  State  (Tex.  Cr.  App.),  204  S.  W.  438.. 3O6,  360, 

361,  375,  456,  460 

Andalousia,  Flagin  v 86,  413 

Anderson  v.  Daugherty,  137  Tenn.  (10  Thompson)  125,  191  S. 

W.  974 196 

Anderson,  Dutton  v 176,  193 

Anderson  v.  Fant  (S.  C.)r  79  S.  E.  640..  641 97 

Anderson,  Legg  v 193 

Anderson,  McMillan  v 448 

Anderson  v.  State,  20  Ga.  App.  747,  93  S.  E.  237 S'64 

Anderson  v.  State,  109  Miss.  521,  68  So.  770 114 

Argo,  People  v 374 

Armington  &  Sons  v.  State  (Ga.  App.),  100  S.  E.  15 228,  459 

Arsenault,  State  v 238,  241,  283 

Atchison,  etc.,  R.  Co.  v.  Danciger  v 233 

Atchison,  etc.,  R.  Co.,  De  Hasque  v 141 

Atlanta,  Lumpkin  v 88,  344 

Atlanta,  Pitts  v 444 

Atlanta,  Shaw  v 435 

Atlantic  Coast  Line  R.  Co.,  Greer  Drug  Co 81 

Atwell,  Gunn  v 231 

Atwood,  Green  v 73,  74 

Atwood,  State  v 317 

Augusta,  Du  Vail  v 344 

Autrey  v.  State  (Ga.  App.),  99  S.  E.  389 322,  325,  359,440 

Autrey  v.  State,  18  Ga.  App.  13,  88  S.  E.  715 446 

Avicolli,  State  v 397 

B 

Babbitts.  Corrigan,  157  la.  382,  138  N.  W.  466 186 

Baca  v.  State,  18  Ariz.  350,  j.61  Pac.  686 277,  452 

Bachtold,    State    v 244,  449 

Bacot  v.   State,  94   Miss.  225,  48   So.  228,   21   L.   R.   A.,   N.    S., 

524n     377 

Bailey,   State  v 343,  347 

Bain  v.  State,  76  Tex.  Cr.  App.  519,  176  S.  W.  563 114 

Baldwin,   State  v 286,  289,  290,  291,   329,   378,  392,  445 

Balfe  v.  People   (Colo.),  179  Pac.   137 205,  206,  238,  245,  378 

Baltimore,  etc.,   R.  Co.,   State  v 173,   179,  184 

Banks  v.   State    (Ind.),    123    N.    E.    691 133 

Barber  v.  Buonanni  Co.,  179  la.  642,  161  N.  W.  688,  689.....  189,  433 

Barber  v.  City  Drug  Store,  <17S  la.  651,   155  N.  W.  992..  190,  191,  194 

Barber   v.    Dapolonia    (Ga.),    171    N     W.    586 187 

Barbour  v.   Georgia,   249   U.    S.   454,   39   Sup.   Ct.   316 63 


TABLE  OF  CASES  CITED  vii 

Barbour  v.  State,  146  Ga.  667,  668,  92   S.  E.  70 131 

Barbour  v.  State   (Ga.  App.),  ;99  S.   E.  782 299,  300,  309,  329 

Bare  v.  Commonwealth,  122  Va.  783,  94  S.  E.  168,  169.. 304,  3'40,  411 

Barksdale   v.   State  '(Ga.   App.),    100   S.    E.   771 325 

Barnhill  v.  State,  74  Tex.   Cr.  App.  97,   167   S.  W.  348 454 

Barr,    State   v 85,    364,    379 

Bartemeyer  v.  Iowa,   18   Wall.  29,   21   L.    Ed.   929 60,   62,  63 

Bartow,    State    v E41,    249 

Bass  Pub.  Co.,  State  v  96,  164 

Bates,    State   v 239 

Batten  v.  Smarley,  168  la.  362,  150  N.  W.  583 188 

Battle  v.  State,  6  Ga.  App.  578,  65  S.  E.  333 139 

Baumgartner  v.  State  (Ariz.),  178  Pac.  50 115,  302,  354,  363,  462 

Baumgartner,   United   State  v 75,   85,   89,   270 

Baxter   v.    Chattanooga    Brewing    Co.    (Ala.),    82    So.    16 117 

Beaty  v.   State,   7  Ga.   App.   327,  66   S.   E.   808 387 

Becker,    State    v 265 

Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  33,  24  L,.   Ed.  989 60,  63 

Begley  v.  Commonwealth,  176  Ky.  796,   197   S.  W.  448 353 

Beiser  v.  State,  9  Ala.  App.  72,  63  So.  685 137 

Belchner  v.  State  (Okla.  Cr.  App.),  183  Pac.  925 445 

Belden   &    Co.  v.   Leisy   Brewing    Co.,   161  C.  C.    A.   420,  249 

Fed.    462    104 

Bell,    People   v 146 

Belton,    Felia    v 233 

Benevolent  and  Protective   Order  of   Elks,    Davidson  v 189,  192 

Benjamin  v.  Montgomery  (Ala.  App.),  81  So.  145 356 

Benton,    Hathaway   v 174,    175,    177 

Benton  v.  State,  9  Ga.  App.  422,  71   S.   E.  498 343 

Berger,    State  v 240 

Berner  -v.  McHenry,  169  La.  483,  151  N.  W.  450 152 

Berry  v.  State  (Tex.  Cr.  App.),  203'  S.  W.  901 371,  416,  417 

Berryman  v.  United   States   (C.  C.  A.),  259   Fed.  208 129,  453 

Biandi  v.  United  States    (C.  C.   A.),  259   Fed.  93 399,  400 

Biegelow,    Marston    v 348 

Billingsley  v.   State,  4  Okla.    Cr.  App.   597,   113'  Pac.  241 382 

Billinggsey,   State   v 306,  378,   389,   408,   426 

Bird  v.  Sears   (la),  173  N.  W.  925 oSO,  449,  454 

Bird  v.   State    (Tex.    Cr.   App.),   206    S.   W.    844.. 240,    306,    367, 

368,    369,     441  457 

Birmingham,    Borok  v 428 

Birmingham,    Flowers   v 324,    327,    418,   419,426 

Bishop  v.  State,   18   Ga.  App.  714,  90  S.   E. -369 328,  383,  384 

Bishop  v.  United  States  (C.  C.  A.),  259  Fed.  195 127,  362,  380,  451 

Black  v.   Delaye,   193  vAla.  500,  68   So.  99,  L.   R.  A.   1915E,  640. 

60,    62,    65,    163,    185 


viii  TABLE  OF  CASES  CITED 

Black  v.   Southern    Exp.    Co.    (Ala.),    75   So.    343 66 

Black  v.  State,   75   Neb.   603,   106   N.   W.   787 197 

Blackburn  v.  State,  79  Tex.   Cr.  App.   446,   385   S.   W.   581 102,   110 

Blackman  v.  United  States,  162  C.  C.  A.  519,  520  Fed.  449 323 

Blackwell,    State    v 33'4 

Blair  v.  'Commonwealth,  122  Va.  798,  94  S.   E.  185 263 

Blakely,    Sawyer    v 448 

Blauntic,    State   v 203,    419,  421 

Bledsoe  v.  Jackson,  16  Ga.  App.  479,  85  S.  E.  676 436 

Bloodworth  v.  Milledgeville,  12  Ga.  App.  560,  79  S.  E.  131 391 

Bluthenthal  v.  Kennedy,  165  N.  C.  372,  81  S.  E.  337 73 

Bodecker,   State  v 265 

Bondurant  v.  State,  14  Okla.   Cr.  App.  3«8,  171   Pac.  488 378 

Bonner  v.   State,  2   Ga.  App.  711,  58   S.    E.   1123 396 

Boos  v.  State,   181  Ind.   562,   105   N.   E.   117 108 

Booth  v.  Illinois,  184  U.  S.  425,  22  Sup.  Ct.  425,  46  L.  Ed.  623..          61 

Borders  v.  Macon,  18  Ga.  App.  333,  89  S.  E.  451 392,  419,  420,  421 

Borok    v.     Birmingham,     191    Ala.    75,    67    So.    389,     Ann    Cas. 

1916C    1061 428 

Bossingham,    State   v 174 

Bowers  v.  Maas,  154  la.  640,  135  N.  W.  25 183,  186,  335 

Boynton,    State   v 304,    383',    403 

Bracy  v.  Commonwealth,  119  Va.  867,  89  S.  E.  144 281,  411 

Braden  v.   State   (Okla.   Cr.   App.),   181    Pac.   736 325 

Bradford,    State    v 239 

Bradley,   State  v 132,  3'42,   3"43,   844,  425 

Bradley  v.  United  States   (C.  €.  A.),  254  Fed.  289 451 

Bragg  v.  State,  15  Ga.  App.  623,  630,  84  S.   E.  82 419,  455 

Bragg  v.  State   (Ga.  App.),  99  S.  E.  310 109 

Brantley  v.  State,  107  Miss.  466,  65  So.  512 114 

Brantly  v.  State,  91  Ala.  17,  8  So.  816 413 

Braxton  v.    State    (Ala.    App.),    82    So.   657 373,443 

Bray  v.  Commerce,  5  Ga.  App.  605,  63  S.  E.  596 347,  348,  456 

Brenneman,    Northern,    etc.,    Co.    v 221 

Bridgeforth  v.   State    (Ala.  App.),   77   So.   77 389 

Bridgeforth  v.   State,  15  Ala.  App.  502,  74  So.  402 112 

Brigman  v.  State,  8  Ala.  App.  400,  62   So.  980 391,  419,  458 

Brittain  v.  State   (Civ.  Cr.  App.),  214  S.   W.  351 271 

Brokhaus  v.   State,   11   Okla.   Cr.  App.   625,   150  Pac.   510 396 

Bronanni    Co.,    Barber  v 43'3 

Brookins,    Seattle    v 390 

Brooks  v.  State,  19  Ga.  App.  3,  90  S.  E.  989.. 205,  293,  301,  302, 

303,  413 

Brooks  v.  State,  19  Ga.  App.  45,  90  S.  E.  971 299 

Browder  v.   State    (Okla.  Cr.   App.),    180    Pac.    571 453 

Brown,  Herbring  v 59 


TABLE  OF  CASES  CITED  ix 

Brown  v.  State  (Ala.  App.),  81  So.  366 132 

Brown  v.  State,   17  Ariz.   314,   152   Pac.  518 74,  82,   91,   140 

Brown  v.   State,   8   Ga.   App.   691,    70   S.    E.   40 273 

Brown,    State  v 266 

Browning,    Zamata    v 69 

Buchanan,   Cheatwood  v 347 

Buckman,    State  v 146 

Bucks    Stove    Co.,    Gompers  v 197 

Bullard  v.  United  States,  158  C.  C.  A.  177,  254  Fed.  837.. 297,  305,  315 

Bullock,    People   v 133',    377 

Bundy  v.  State   (Okla.  Cr.  App.),  184   Pac.  795 273,  329,  407 

Bunker,    State    v 33'4  342 

Buonanni   Co.,   Barber  -v 189 

Burchfield,    State   v 116 

Burgan  i:  State   (Ga.  App.),  99  S.  E.  636 224,  230,  279,  329 

Burnham,    Cox    v 96 

Burr,    National    Mason    Acci.    Ass'n   v 3'48 

Burton  v.  Commonwealth,   122  Va.  847,  94   S.   E.   923 72,  277,  314 

Burton  v.   State    (Ark.),  206    S.    W.    51 125,  126 

Busick,  State  v 115,  268,  403,  404 

Butler  v.   State,   12   Okla.   Cr.  App.   530,   159   Pac.   1090 3'41 

Butler,   State  v 292,  319,  323,  S36,  382,  401,  402,  449,  453 

Butler  v.  Washington,  11  Ga.  App.  133,  74  S.  E.  858 431 

Butterfield  v.  United  States,  154  C.  C.  A.  332,  241  Fed.  556 65 

C 

Caffee  v.  State,  11  Okla.   Cr.  App.  485,  148   Pac.  680 334,   336,  337 

Caffini  v.   Hermann,   112  Me.   282,   91   Atl.   1009 209,   279 

Cage  v.  State,  11  Ga.  App.  318,  75  S.  E.  160 431,  440 

Cagle   v.    State,    106    Miss.   370,   63    So.    672 458 

Calhoun   v.   State,   144   Ga.   679,   87    S.   E.   893 388 

California,    Murphy    v 61 

Calliari,    People    v 322,  397 

Campbell,    Crane   v 60,    61,  214 

Campbell  v.   State    (Ala.  App.),  78    So.   715 334,  429 

Campbell  v.  Thomasville,  6  Ga.  App.  212,  <«4  S.  E.  815 87 

Canales  v.  State   (Tex.   Cr.  App.),  215   S.  W.  964 375,  431 

Cannington   v.   State,   14   Ga.   App.   814,   82   S.    E.   356 456 

Canode,    Cartwright    v 212 

Cardwell,    State  v 104,  287,   362 

Carl  v.  State,  87  Ala.  17,  6  So.  118,  4  L.  R.  A.  380 413 

Carleton  v.  State,   129  Ark.  361,   196  S.  W.   124 345 

Carmichael  -v.   State,  11  Ala.   App.  209,   65   So.   694 447 

Carrico  v.   State    (Okla.   Cr.   App.),   180  Pac.   870 452 

Carson  v.  State,  3  Ala.  App.  206,  58   So.  88 96,   366,  459 

Carswell  v.   State,  7   Ga.   App.   198,   66   S.   E.   488 84,  435 


x  TABLE  OF  CASES  CITED 

Carter  v.  Commonwealth,  123  Va.  810,  96  S.  E.  766.... 315,  334,  335 

Carter  v.  State,  68  Ga.  96 264 

Carter  v.  State,  21  Ga.  App.  493',  94  S.  E.  630 438 

Cartwright  v.  Canode,  106  Tex.  502,  171  S.  W.  696 212 

Cartey  v.  State,  135  Ark.  169,  204  S.  W.  207 280 

Cashin  v.  State,  18  Ga.  App.  87,  88  S.  E.  996 243 

Caskey,  State  v 386 

Cassidy  v.  Howard,  140  Ga.  844,  80  S.  E.  1 192 

Cassidy  v.  State,  10  Ga.  App.  123,  72  S.  E.  939 281 

Castle  v.  Lewis  (C.  C.  A.),  254  Fed.  917,  918 280,  337,  452 

Cathey,  State  v 208,  401 

Cedarto wn,  Morgan  v 347 

Centennial  Brewing  Co.,  State  v 80,  83,  87,  93 

Cerecedo  Hermanos  y.  Compania,  United  States  v 90 

Ceresa,  State  v 397,  398 

Certain  Appurtenance  Used  in  Sale  of  Intoxicating  Liquors, 

State  v 219 

Certain  Intoxicating  Liquors,  State  v 71,  13'6,  217,228 

Chambeilain,  State  v 147 

Chance  v.  State  (Tex.  Cr.  App.),  210  S.  W.  208,  209 296,  305 

Charles  Blum  Co.,  Christopher  v 107 

Chatanooga  Brewing  Co.,  Baxter  v 117 

Cheatwood  v.  Buchanan,  9  Ga.  App.  828,  72  S.  E.  284 347 

Cheek  v.  State,  3'  Ala.  App.  646,  57  So.  108 210,  400,  429 

Cheek  v.  State,  14  Ala.  App.  44,  70  So.  990 428 

Chicago,  etc.,  R.  Co.  v.  Lake  County,  etc.,  Sav.  Co.,  186  Ind. 

358,  362,  114  N.  E.  454 432 

Chicago,  etc.,  R.  Co.,  State  v 174 

Chicco,  State  v 183 

Christensen,  Crowley  v 60,  62 

Christopher  v.  Charles  Blum  Co.  (Fla.),  82  So.  765 107 

Chronister  v.  State  (Ark.),  215  S.  W  634 250,  288 

Cihok  v  United  States,  146  C.  C.  A.  509,  232  Fed.  551 414 

Cipra,  State  v 172 

City  Club,  Lyon  -v 88 

City  Drug  Store,  Barber  v 190,  191,  194 

Civic  Improv.  v.  Hanson,  181  la.  327,  164  N.  W.  752 175 

Clancy,  State  v 235 

Clark  v.  Norfolk,  etc.,  R.  Co.  (W.  Va.),  100  S.  E.  480 208 

Clark  v.  State,  5  Ga.  App.  605,  63  S.  E.  606 415 

Clark  v.  State,  74  Tex.  Cr.  App.  464,  169  S.  W.  895 419,  421 

Clark,  State  v 3'45,  414,  455 

Clark  Distilling  Co.  v.  Western  Maryland  R.  Co.,  242  U.  S. 

311,   321,  37   Sup.   Ct.    180,   61   L.   Ed.   326,   L.    R.   A.   1917B, 

1218n,  Ann.  Cas.  1917B,  845 60,  61,  65,  68,  464,  465 

Claunch  v.  State  (Tex.  Cr.  App.),  203'  S.  W.  981 66,  93 


TABLE  OP  CASES  CITED  xi 

Clifford,    State    v 324 

Clopton  v.  Commonwealth,  190  Va.  831,  63  S.  E.  1022 259,  264,  2731 

Coates  v.  State,  5  Ala.  App.  182,  59  So.  323 419    420,  461 

Coates  v.  State   (Tex.  Cr.  App.),  215  S.  W.  856 85,  329,  355 

Cochran  v.  Commonwealth,  122  Va.  801,  94  S.  E.  329..  140,  248, 

314,  425,  448 

Cochran  v.   State    (Ala.   App.),   82   So.   560 99 

Cockran  v.   State    (Ala.),  82   So.   560 237 

Cohen  v.  State,  7  Ga.  App.  5,  65  S.   E.  1096 281 

Cole  v.   State,   120  Ga.   485,   48   S   E.   156 387,   393,   396 

Cole  v.   State   (Okla.    Cr.    App.),   180    Pac.   713 245,   254 

Coleman  v.  State,  7  Ala.  App.  424,  61  So.  20 210,  211 

Coleman  v.  State,  74  Tex.  Cr.  App.  36,  166  S.  W.  164 103 

Collins   v.   Commonwealth,   123'   Ga.   815,   96   S.    E.   826.. 319,   328,   457 

Collins,    Lofton   v 193 

Collins    v.    Milledgeville,    17    Ga.    App.    817,    88    S.    E.    716 360 

Collins,  United  States  v 99,   126,   128,   129 

Collotta  v.   State,  110   Miss.   448,   70   So.   460 175 

Combs  v.   Commonwealth,   162   Ky.   86,   172   S.   W.   101 134,  204 

Combs  v.   Commonwealth,   171   Ky.  231   188   S.  W.   326 427 

Commerce,  Bray  v 347,  348,  456 

Commonwealth  v.  Adams   Exp.,  179  Ky.  394,  200   S.  W.  648..       155 

Commonwealth,  Adams  Exp.  Co.  v 118,  130,  155,  239,  284, 

313',  351,   361,   380,  452 

Commonwealth   v.  Ahern,   228   Mass.  547,   117   N.   E.  827 447 

Commonwealth,  American  Exp.  Co.  v 124,  138,  161,  400 

Commonwealth,   Bare  v 204,   340,   411 

Commonwealth,    Begley    v 353 

Commonwealth,    Blair   v 263 

Commonwealth,    Bracy    v 281,    411 

Commonwealth,    Burton    v 72,    277,    314 

Commonwealth,   Carter  v   315,   334,  335 

Commonwealth,    Clopton    v 259,    264,    273 

Commonwealth,  Cochran  v 140,  248,   314,  425,  448 

Commonwealth,   Collins  v 319,  328,  457 

Commonwealth,   Combs  v 134,   204,   427 

Commonwealth,    Elkhorn    Min.    Corp.    v 117 

Commonwealth,    Fletcher    v 265 

Commonwealth,    Frey    v 209,    313,    355,    397 

Commonwealth,    Fugate    v 425 

Commonwealth  r.  Gardner,  7  Gray  (Miss.),  494,  497 357 

Commonwealth,    Goodman    v 138 

Commonwealth  v.   Goodwin,   109   Va.   828,  64   S.    E.    54 93 

Commonwealth,   Hoskins  v 203',  345 

Commonwealth,   Huddleston  v 104,  300,  454 

Commonwealth,    Kennan    v 263 


xii  TABLE  OF  CASES  CITED 

Commonwealth,  Lane  v 246>  335 

Commonwealth,   Lemon   -u 375,   389,   433 

Commonwealth  v.  Louisville,  etc.,  R.  Co.  (Ky.),  Ho  S.  W.  938. 

277 

Commonwealth,     Lucchesi    v '65,  382 

Commonwealth,    Martin  <v 1 2?>  130 

Commonwealth,    Mullins    v 83',    262,    268,  363 

Commonwealth,   Neal  v 336,  337,  338,  339 

Commonwealth,   O'Donnell  v 107,   237,    366,  377 

Commonwealth,    Pettus    v 132 

Commonwealth,  Pine  v 64,  204,  238,  252,  288,  300,  ?11, 

312,    336,    368,  457 

Commonwealth,    Robinson    v   280,    302,  359 

Commonwealth  v.  Robinson-Pettet  Co..  181  Ky.  702,  205  S.  W. 

774 298,  3'5S 

Commonwealth  v.  Ruh,   173   Ky.   771,   191   S.   W.  498,   L.   R.   A. 

1917D,   283 174,  175 

Commonwealth,    Rush    v 193 

Commonwealth,    Shiflett    v 262 

Commonwealth,   Sickel  v 98,   127,   247,   249,   258,  465 

Commonwealth  v.   Southern   Exp.   Co.,   128   Ky.   132,  206   S.   W. 

167     154 

Commonwealth,    Southern    Exp.    Co.   v 240 

Commonwealth  v.   Stone    (Ky.),   176   S.   W.   1138 107 

Commonwealth  v.   Fay,  146   Mass.   146,   15   N.   E.   503' 447 

Commonwealth  v.   Thayer,   49   Mass.    (8   Mete.)    525,    526 441 

Commonwealth,   Tomlin   v 314 

Commonwealth   v.    White    (Ky.),    179    S.    E.    469 118 

Commonwealth,    Wilkerson    v 244 

Commonwealth,  Wilson   v 342,   419,  447 

Commonwealth   v.   Wood,  4   Gray    (Mass.),   11 357 

Commonwealth,    Woods    v 432 

Compton,    State    v 312 

Condit  v.  State,  130  Ark.  341,  197  S.  W.  579 113,  309,  434 

Conley  v.   State   (Okla.   Cr.   App.),   179   Pac.   480 265,   336,   382,  449 

Conner,    State    v 445 

Cook  v.  State,   124   Ga.   653,  53   S.  E.   104 106 

Cook   Brewing   Co.,    Schmitt  v 62,   63',   67,   80,  144 

Cool,    State    v 414 

Cooper  v.  Ft.  Valley,  13  Ga.  App.  169,  78  S.  E.  1097 347,  448 

Cooper  v.  Gadsden,  10  Ga.  App.  609,  65  So.  715 383,  385, 

Cooper  v.  State,  19  Ariz.  486,  172  Pac.  276 90,   140,   151,   3'46, 

351,  354 

Cooper,    State   v 257 

Corley  v.   State   (Ga.  App.),  98   S.   E.   401,   402 255 

Cornell,    Orr    v 198,  199 


TABLE  OF  CASES  CITED  xiii 

Correlis  v.  State  (Fla.),  82  So.  601 70 

Corrigan,  Babbitt  v 186 

Country  Club  r.  State  (Tex.),  214  S.  W.  296 134,  180 

Country  Club,  State  v 137 

Coverdale,  State  v 92,  345,  346,  380 

Cowart  v.  State,  14  Ga.  App.  763,  82  S.  E.  3131 347,  348 

Cowart  v.  State,  18  Ga.  App.  677,  90  S.  E.  286 441 

Cowart  v.  Young,  74  Ga.  694 224 

Cowles,  Everett  v 430 

Cowley  v.  State,  72  Tex.  Cr.  App.  173,  161  S.  W.  471 296 

Cox  v.  Burnham,  120  la.  43,  94  N.  W.  265 96 

Cox,  Ohio  v 57,  58 

Cox  v.  State  (Okla.),  160  Pac.  895 226 

Ccx,  State  v 139,  354,  355 

Craig,  People  v 96 

Craig  v.  State,  9  Ga.  App.  233,  70  S.  E.  974 387,  393 

Crane  v.  Campbell,  245  U.  S.  304,  38  Sup.  Ct.  98,  62  L.  Ed. 

304  60,  61,  214 

Crane,  In  re 62 

Crapp  v.  State  (Ga.  App.),  98  S.  E.  174 221 

Cravey  v.  State,  10  Ala.  App.  168,  64  So.  756 383 

Crawley  v.  State  (Ala.  App.),  73  So.  222,  223 110 

Crider,  State  v 263 

Cripe  v.  State,  4  Ga.  App.  832,  62  S.  E  567 88,  344 

Cross,  Rosenoff  v 145 

Crowley  i:  Christensen,  137  U.  S.  86,  91,  11  Sup.  Ct.  13,  34  L. 

Ed.  620 60,  62 

Cumberland,  State  v 179 

Gumming  v.  Funkenstein  Co.  (Ala.  App.),  81  So.  343 356 

Cunningham  v.  State  (Ala.  App.),  75  So.  816 252 

Cureton  v.  State,  135  Ga.  660,  70  S.  E.  332,  49  L.  R.  A.,  N. 

S.,  182n 62,  131 

Curry  v.  State,  117  Md.  587,  831  Atl.  1030 245,  358,  403,  405 

Curtwright,  State  v 266 

D 

Dalton  v.  State   (Ga.  App.),  100  S.   E.  781 325 

D'Amico  v.  State   (Del.),  102  Atl.  78 102,  383,  384 

Danciger   v.   Atchison,   etc.,    R.    Co.    (Mo.),   212    S.    W.   5 233 

Danciger,    Missouri,    etc.,    R.    Co.    v 1231 

Dann,    People   v 350 

Dantzler  v.   State,   104   Miss.   233,   61   So.   305 105 

Dapolonici,    Barber  v 187 

Darneal  v.  State   (Okla.   Cr.  App.),  171   Pac.   737 102 

Daugherty,    Anderson    v 196 


xiv  TABLE  OF  CASES  CITED 

Davidson  v.  Benevolent  &  Protective  Order  of  Elks,  No.  374, 

174  la.   1,  156  N.  W.   187 189,   192 

Davis,    Ex  parte 60,    64,    72 

Davis  v.  State  (Ga.  App.),  100  S.   E.  782 133,  440 

Davis  v.   State,   100  Ind.   154 253 

Davis  v.   State   (Okla.   Cr.  App.),   182   Pac.  908 445 

Davis,  State  v €2,   148,  149,  150,   151,  163',  218,  220, 

226,  227,  261,  265,  352 

Davis,    Wachal    v 148 

Deal  v.  State,  14  Ga.  App.  121,  80  S.  E.  537,  541 102,  106,  135,  444 

Dean  v.  State,  13O  Ark.  322,  197  S.  W.  684.  .113,  264,  365,  383,  384,  461 

IJeck,    McConathy    v 225 

Decker,   State  v.    . . : 165 

Dees  v.  State  (Ala.  App.),  75  So.  645 91,  252,  333 

De  Hasque  v.  Atchison,  etc.,  R.  Co.  (Okla.),  173  Pac.  73 141 

Delaney  v.  Plunkett,  146  Ga.  547,  91  S.  E.  561,  L.  R.  A.  1917D, 

996,   Ann.    Cas.    1917E,    685 62,    131,    235 

Delaye,  Black  v 60,  62,  65,  163,  185 

De  Moss  v.  United  States,  162  C.  C.  A.  259,  250  Fed.  87 67,  381 

Dent  v.  State,  14  Ga.  App.  269,  80  S.  E.  548 344 

Denton,    State    v 63,    110,    111,    202,    455 

Dereiko,  State  v 271,   308,  376 

Dick  And  Bros.  Quincy  Brewing  Co.,  State  v 176 

Dillon  v.  Saleeby  (S.  C.),  18  S.  E.  123 69 

Dinkins  v.   State,   149  Ala.   49,  43   So.   114 65 

District  Court,  Nies  v 193,  194,   195,  197,  198,  199,  200, 

334,  377,  393 

District   Court,   Rust  v 199 

District  Court,  State  v 197,  198,  200 

District  Court  Wells  v 197 

Dollison,    Loyd   v 143 

Donaldson  v.  State,  3  Ga.  App.  451,  60  S.  E.  115 92,  3'65,  441 

Dononvan  v.  State,  170  Ind.  470,  99  N.  E.  786 256 

Donovan,    State    -v 72 

Doremus,    State    v 209 

Dorah,    Newberry   v 131 

Doss  v.  State,  7  Ala  App.  121,  €1  So.  748 458 

Dosset  v.  United  States,  161  C.  C.  A.  20,  248  Fed.  902 278,  294,  300 

Dou'blin  v.  State,  15  Ala.  App.  527,  74  So.  86 318 

Doucet,    State    v, 246,    357 

Dozier  v.  State,  14  Ga.  App.  473,  81  S.  E.  368 318 

Duff,    State  v 247,   267,   268,  282 

Duluth,    Sponnick   v 230 

Dunbar  v.  State,  21  Ga.  App.  502,  94  S.  E.  587 319,  320 

Duncan    v.    State    (Ga.),    99    S.    E.    612 229 

Duncan  v.  State,  100  S.   E.   38 229 


TABLE  OP  CASES  CITED  xv 

Dunn  v.  State,  8  Ala.  App.  382,  62  So.  379 341,  421 

Dunn   v.    State,   8   Ala.   App.   410,   62    So.   996 301 

Dunn  v.  State,  18  Ga.  App.  95,  89  S.  E.  170 419,  420 

Dunn,    State    v 267 

Durein,    State    v 62 

Duren  v.  State,  21  Ga.  App.  524,  94  S.  E.  902 314 

Durr,    State   v 417,  436 

Dutton  v.  Anderson    (Ala),  145   N.  W.  321 176,  193 

Du  Vail  v.  Augusta,  115  Ga.  813,  42  S.  E.  265 344 

E 

Earp  v.    State    (Ariz.),    184    Pac.    942 245,265 

Eastman,    Simpson    v 3'47,  348 

Eberle   v.    Michigan,    232    U.    S.    700,   34    Sup.    Ct.    464 60,  144 

Echols  v.   State    (Ala.),  75   So.   814 255,  278 

Eden,    State   v 207 

Edenfield  v.  State,  14  Ga.  App.  401,  81  S.  E.  253 461 

Edmunds  v.   State   (Ala.  App.),  81  So.  847 373 

Edwards  v.   State    (Ark.),  213'  S.   W.   11 98,  125 

Elder  v.   State,    162   Ala.   41,    50   So.    370 66 

Elder  Harrison  Co.  v.  Jervey,  97  S.  C.  185,  81  S.  E.  501 73 

Elkhorn  Min.  Corp.  v.  Commonwealth,  173  Ky.  417,  191  S.  W. 

256     117 

Elligott,    Hoffman    Brewing    Co.    v 89,    90 

Elliott  v.   State,   19  Ariz.   1,   164  Pac.  1179 108,   309,   403,  404 

Elliott,    State  v 260 

Ellis  v.  State,  133  Ark.   540,  202   S.  W.  702 296,  305 

Ellis,  United  States  v 80 

Elmore,   State  v 102 

Emmons,    People  v 91,   280,   294,   371,  412 

Emonds,  State  v 145,  376 

Emsweller  v.  Wallace,  78  W.  Va.  214,  88  S.  E.  787 212,  272 

Engman  v.   State,  77  Tex.  <Cr.   App.   59,   179   S.   W.   569 367 

Estes  v.   State    (Okla.  Cr.   App.),   166   Pac.   77 84 

Everett   v.    Cowles,   97    Wash.   396,    166    Pac.    786 '. 430 

Everett  v.  McCulloch,  102  Wash.   51,   172  Pac.  863 219 

Ex   parte   Ahart,    172    Cal.    762,    159    Pac.    160 138,  239 

Ex  parte  Alderete   (Tex.  Cr.  App.),  203'  S.  W.  763 196 

Ex  parte  Davis  (Tex.  Cr.  App.),  215  S.  W.  341 60,  64,  72 

Ex  parte  Fulton   (Tex.  Cr.  App),  215  S.  W.  331 62,  6^,  72,  276 

Ex  parte  Kearney,  7  Wheat  (U.  S.)  'S«,  5  L.  Ed.  391 197 

Ex  parte  Peede,  75  Tex.  Cr.  App.  247,  170  S.  W.  749 157 

Ex  parte  Roya  (Tex.  Cr.  App.),  215   S.  W.  322 70,  323 

Ex  parte  Westbrook  ( D.  'C.) ,  250  Fed.  63'6 125,  128 

Ex   parte    Woodward,    181    Ala.    97,    106,    61    So.    295 65 

Ex   parte    Zwissig    (Nev.),    178    Pac.    20 206 


xvi  TABLE  OF  CASES  CITED 


Fabbri,  State  v 62,  67,  99,  101 

Fahnestock  v.  State,  102  Ind.  156,  1  N.  E.  372 253 

Fair  v.   State    (Ala.   App.),   75   So.   828 391 

Fant,    Anderson    v 

Faraone  v.  United  States   (C.  C.  A.),  259  Fed.  507 409 

Fargo    Bottling   Works    Co.,   State  v 62 

Farmer  v.  Sellers,  89  S.  'C.  492,  72  S.   E.  224 ?10,  211 

Farmer  v.  State,  18  Ga.  App.  54,  88  S.  E.  797 347,  348 

Feagin  v.  Andalousia,  12  Ala.   App.  611,  67   So.   630 86,   413 

Fehringer  v.   People,   59  'Colo.  3,   147    Pac.   361 257,  274 

Felia  v.  Belton,  170  N.  C.  112,  86  S.  E.  999 233 

Ferris,    State    v 117     423 

Fetters  v.  United  States  (C.  €.  A.),  260  Fed.  (142 282,  366 

Files  v.  State   (Okla.  Cr.  App.),  182  Pac.  911....  103,  327,  328, 

352,   370,   462 

Finch  v.  State,  6  'Ga.  App.  338,  64  3.  E.  1007 106,  264,  440 

Findley  v.  State,  11  Okla.  Cr.  App.  275,  145   Pac.   1107 321 

Fine  v.  Moran   (Fla.),  77  So.  533' 60,  66,   71 

Finlayson,   State  v 196,   197 

Finley,    Union    Nat.    Bank   v 432 

First  Nat.  Bank  v.  State   (Okla.),  178  Pac.  670 218 

Fisher  v.  Skoglund,  155  la.  440,  136  N.  W.  231 181,  190 

Fisher  v.  State,  181  Tex.  Cr.  App.  568,  197  S.  W.  189.. 265,  311, 

313,  349,  424 

Fisher  v.   Stolvenor  &   Co.,  .155   la.   548,   136   N.   W.   673 183 

Fitch  v.   State,   102   Neb.  361,   167   N.   W.   417,  419 60,   61,   243 

Fletcher  v.   Commonwealth,    106   Va.    840,    56    S.    E.    149 265 

Fletcher  v.  State,  12  Ga.  App.  809,  78  S.  E.  478 347 

Fletcher  v.  State,  13  Okla.  Cr.  App.  563,  165  Pac.  907 424 

Flood  v.  State,   12  Ga.  App.  702,  78  S.  E.  268 349,  433 

Flowers  v.  Birmingham  (Ala.  App.),  83  So.  36 324,  327. 

418,  419,  426 

Fogg,    State    v 183,    187,  275 

Food  Conservation   Act,   In  re 229 

Ford  v.  State  (Tex.  Civ.  App.),  209  S.  W.  490,  494 57 

Ford  v.  United  States  (C.  C.  A.),  259  Fed.  552 378 

Ford  Touring  Car  No.  1,440,316,  State  v 222,  256 

Ft.    Valley,    Cooper    v 347,  448 

Fortin,    State   v 369 

Foster,    Seattle   v 96 

Fountain,     Ruston    v 107,  193 

Fountain,    State   v 280,   342,    343,   365,   393,  399 

Foxworth   v.   Law    (Fla.),   82    So.   55 277 

Francis,   State  v 259,   320,  358 


TABLE  OF  CASES  CITED  xvii 

Franklin,  etc.,   Co.,   Southern  Products  Co.  v 432 

Frazle,    State    v 464 

Freeman  v.   State   (Okla.   Cr.  App.),  183  Pac.  626 445 

Freeman,    State  v 259,  283,   287,  318 

Freeney  v.  Gasper,  8  Ala.  App.  469,  62  So.  385 427 

Frey  v.   Commonwealth,   169   Ky.  528,  184  S.  W.  896 209,   313',  397 

Fugate  v.   Commonwealth,   171   Ky.  227,   188   S.  W.  324 425 

Fulton,   Ex  parte    62,  64,   72,  276 

Funkenstein    Co..    Gumming  v 356 

G 

Gable  v.  State  (Ind.),  121  N.  E.  113 108 

Gadsden,  Cooper  v 383,  385 

Gage  v.  State,  125  Ark,  256,  188  S.  W.  803 426 

Gales  v.  State,  14  Ga.  App.  450,  81  S.  E.  364 372,  412 

Galliari,  People  v 444 

Gandrup,  Milhiser  v 151 

Gardner,  Commonwealth  v 357 

Gardners.  State  (Tex.  Cr.  App.),  212  S.  W.  169 119 

Garfield  v.  State,  114  Miss.  710,  75  So.  548 118 

Gary  v.  State,  7  Ga.  App.  502,  67  S.  E.  207 396 

Gaskins  v.  State,  127  Ga.  51,  55  S  E.  1045 343,  347 

Gastonguay,  State  v 176,  353,  448 

Geer  Drug  Co.  v.  Atlantic  Coast  Line  R.  Co.,  104  S.  C.  207,  88 

S.  E.  448,  Ann.  Cas.  1917C,  908 81 

Geist,  State  v 309 

Gens,  State  v 122,  291,  328 

George  v.  State,  17  Ga.  App.  555,  87  S.  E.  814 347,  348 

George,  State  v 66 

Georgia,  Barbour  v 63 

Germain,  State  v 60,  67 

Gesell,  State  v 403,  422 

Gilliland  v.  State  (Okla.  Cr.  App.),  179  Pac.  786 138.  435 

Gillispie  v.  State,  96  Miss.  856,  51  So.  811 339 

Giozza  v.  Tierman,  148  U.  S.  657,  13  Sup.  >Ct.  721,  37  L.  Ed. 

599  61 

Glass,  State  v 182,  190 

Glover  v.  State,  11  Ala.  App.  287,  66  So.  877 261 

Goldsberg,  People  v 267,  321,  374 

Goldstein  v.  United  States  (C.  C.  A.),  256  Fed.  813,  815 282 

Golpi  v.  State,  14  Okla.  Cr.  App.  564,  174  Pac.  288 124,  294 

Gompers  v.  Bucks  Stove  Co.,  221  U.  S,  418,  31  Sup.  Ct.  492,  55 

L.  Ed.  797,  34  L.  R.  A.,  N.  S.,  874n 197 

Goodman  v.  'Commonwealth,  169  Ky.  542,  184  S.  W.  876 138 

Goodman  v.  State  (Ind.),  121  N.  E.  826 432 

Goodwin,  Commonwealth  v 93 

— b 


xviii  TABLE  OF  CASES  CITED 

Gordon,  Jackson  v 137,  139,  202,  351,  354 

Gordon,  State  v 153,  211,  419,  423,  424,  428 

Gosell,  State  v 115 

Grace  v.  State,  1  Ala.  App.  211,  56  So.  25 119,  267 

Granlich  v..  State,  135  Ark.  243,  204  S.  W.  848 251,  307 

Grant  v.  State,  87  Ga.  265,  13  S.  E.  554 343.  347 

Great  Northern  Pac.  S.  S.  Co.  v.  Ranier  Brewing  Co  (C.  C.  A.), 

255  Fed.  762 123,  158 

Great  Northern  R.  Co.,  State  v 126,  130,  152,  221,  222 

Green  v.  Atwood  (Wash.),  180  Pac.  399 73,  74 

Green,  State  v 259,  260 

Gresham  v.  State,  1  Ala.  App.  230,  55  So.  447 262 

Grider  v.  State,  10  Ala.  App.  170,  64  So.  756 294 

Grier  v.  Johnson,  88  la.  99,  55  N.  W.  80 197 

Griffin  v.  Smith  (Ga.  App.),  99  S.  E.  386 229,  230 

Griffin  v.  State,  142  Ga.  636,  83  S.  E.  540 333 

Griffin  v.  State,  15  Ga.  App.  552,  83  S.  E.  871 206,  281 

Gross,  State  v 103,  110,  367 

Grusin  v.  State,  10  Ga.  App.  149,  75  S.  E.  350 368 

Guarreno  v.  State,  148  Ala.  637,  42  So.  833 371 

Gudger,  United  States  v- 129 

Guiaccimo  v.  State,  5  Okla.  Cr.  App.  371,  115  Pac.  129 450 

Guignard  v.  United  States  (C.  C.  A.),  258  Fed.  607 436,  439 

Guilbert  v.  Kaufman,  68  Ohio  St.  635,  67  N.  E.  1062 66 

Gulf,  etc.,  R.  Co.  v.  State  (Tex.  Cr.  App.),  212  S.  W.  845. 

• 64,  68,  69,  70,  72,  97,  179 

Gulfort  v.  Martin,  96  Miss.  131,  50  So.  502 272 

Gummer,  State  v 265 

Gunn  v.  Atwell,  148  Ga.  137,  96  S.  E.  2 231 

H 

Haar  v.  State,  14  Ga.  App.  548,  81  S.  E.  811 409,  442 

Hale  v.  State   (Okla.  Cr.  App.),  181  Pac.  735 451,  461 

Hall  v.   Mobley,   13    Ga.   318 224 

Hall  v.  State,  19  Ariz.  12,  165  Pac.  300 88,  137,  140,  410 

Hall  v.  State,  7  Ga.  App.  186,  66  S.  E.  486 280 

Hall  v.  State,  8  Ga.  App.  747,   70  S.  E.  211 257,  263,  264 

Hamilton  v.  State,  80  Tex.  €r.  App.  516,  191  S.  W.  1160 113 

Hampton,    State    v .315,  328 

Haney,  State  v 266 

Hanson,    Civic    Improv.    League    v 175 

Harris  v.  Hutchison,   160  la.  149,  140  N.  W.  830,   44  L.  R.  A., 

N.    S.,    1035 199,200 

Harris,    People    v 150 

Harris  v.   State   (Ark.),   215   S.   W.  620 255,   284,  295 

Harris  v.  State,  21  Ga.  App.  796,  95  S.  E.  321...  244 


TABLE  OF  CASES  CITED  xix 

Harris  v.  State,  113  Miss.  457,  74  So.  323,  L.  R.  A.  1917D,  1031n 

118 

Harris  v.  State  (Okla.  Cr.  App.),  181  Pac.  944 323 

Harrison  v.  State,  12  Ala.  App.  284,  68  So.  532 304,  358,  461 

Harrison,   State  v 191 

Hartsville  v.  McCall,  101   S.  C.  277,  85   S.  E.  599 125 

Harwell  v.   State,   11   Ala.  App.   188,   65   So.  702 363,  462 

Harwell  v.   State,   12  Ala.   App.   265,   68   So.   500 355,   383,   384,   411 

Hastings,    State   v 108,    138,    140,    147,   351,379 

Hathaway  v.  Bluton,  127  la.  299,  154  N.  W.  474 174,  175,  177 

Hatinger,   People  v 280 

Hawkins  v.  State   (Okla.  Cr.  App.),  182   Pac.  732 256 

Hayes  v.  State,  18  Ga.  App.  68,  88  S.   E.  752 419 

Haymond  v.   State    (Ind.),    119   N.   E.   5,   6 256 

Haynes  v.   State,   5   Ala.   App.   167,   59    So.   325 119 

Hays,   State  v 106,  350,  416,  442 

Hazelhurst,    Langston    v 347,  348 

Head  z:  State  (Tex.  Cr.  App.),  198  S.  W.  581 315 

Heier  v.   State   (Ind.),  122  N.   E.  578 321 

Heldt,   State  v 265 

Hemmelweit  v.   State    (Ala.),   75   So.   961 321 

Hemrich,   State  v 62,  80,  81,  82.  83,  93,  94,  345 

Henderson  v.  Heyward,   109  Ga.  373,  34   S.   E.  590,  47  L.   R.  A. 

366,    77    Am.    St.    Rep.    384 60 

Henderson   Brewing  Co.,   Owens  v 73 

Hendrix  v.  State*  (Ga.  App.),  100  S.  E.  55 133,  296,  299,  300,  445 

Hendry  r.   State,  147  Ga.  260,  93  S.   E.  413,  414 306 

Henley  r.  State,  3  Ala.  App.  215,  58  So.  96 368,  369,  373 

Henry,    State    v 293,    325,  365 

Herbring  v.   Brown   (Ore.),  180  Pac.  328 59 

Herman  i'.   State,   125   Ark.   278,   188   S.   W.   541 '97,   398 

Hermann,    Caffini    v 209,  279 

Hern,    Allison    v 229 

Herring  v.  State,  11  Ala.  App.  202,  65  So.  707 417,  423,  424,  427 

Herring  v.  State   (Ala.  App.),  75   So.  646 254,  287 

Herstrom,   Van   Bug  Fish   Co.  <v 219 

Hesterburg,    Silz    v 61 

Hewetson,    Seattle    v 429,  430 

Heyward,   Henderson  v 60 

Hicks  v.  State   (Ark.),  215  S.  W.  685 72,  73,  374 

Higgins  f.    State    (Ark.),   206   S.    W.   440 381 

High  v  State  (Okla.  Cr.  App.),  180  Pac.  572 382.  445 

High  r.   State    (Okla.    Cr.   App.),   182    Pac.   907 451 

Highsmith  v  Waycross,  7  Ga.  App.  611,  67  S.  E.  677      347 

Hightower  v  State,  73  Tex.  Cr.  App.  258,  165  S.  W.  184 118 

Hill  v.  State,  19  Ariz.  78,  165  Pac.  326 Ill,  137,  403,  404 


xx  TABLE  OF  CASES  CITED 

Hill,  United   States  v 68,  129 

Hillsdale   Distillery   Co.,   United  States  v 159,  268 

Kinsman  v.  State,  41  Ga.  App.  481,  81  S.  E.  367 289 

Hodge  v.  State,  11  Ala.  App.  185,  65  So.  676 417,  423 

Hoffman,    State    v 169,  434 

Hoffman  Brewing  Co.  v.  McEHigott  (D.  C.),  259  Fed.  321.. 64, 

75,  89,  90 
Hoffman  Brewing  Co.  v.  McElligott  (C.  C.  A.),  259  Fed.  525..         89 

Holden  v.  State    (Okla.  Cr.  App.),   180   Pac.  969 442 

Hollanch,   State  v 147,   403,  408 

Holley,    Long   v 148 

Hollingworth  v.  State,  3  Ala.  App.  153,  54  So.  501 454 

Hollingsworth  v.  State,  17  Ga.  App.  725,  88  S.  E.  213 441 

Hollingsworth,    State    v 365 

Holmes  v.  State,  132  Ark.  135,  200  S.  W.  1038 458 

Holmes  v.  State,  12  Ga.  App.  359,  77  S.  E.  187.. 297,  366,  383,  397,  402 

Holt  v.  State  (Ala.  App.),  78  So.  315 238,  243,  354 

Holt  v.  State,  126  Ark.  223,  190  S.  W.  101 422 

Horner,  State  v 100,  101,  301,  439 

Horton  v.  State,  105   Miss.  333,  62  So.  360 104 

Hoskins  v.  Commonwealth,  171  Ky.  204,  188  S.  W.  348 203,  345 

Howard  v.  Acme  Brewing  Co.,  143  Ga.  1,  83  S.  E.  1096  L.  R. 

A.     1917     A,    91 91,175 

Howard,    Cassidy   v 192 

Howard,   Loh  v 190 

Howard  v.  State  (Ala.  App.),  73  So.  559 206 

Howard  v.  State,  7  Ga.  App.  61,  65  S.  E.  1076 , 84,  86 

Howell,    Mullen    v 58,  59 

Howze  v.   State    (Ala.  App.),  75  So.  624 371 

Huddleston  v.  Commonwealth,  171  Ky.  261,  188  S.  W.  366 300,  454 

Huddleston  v.  Commonwealth,   171   Ky.  310,   188  S.  W.   398...       104 

Hudgens  v.  Southern  Exp.  Co.,  74  W.  Va.  760,  83  S.  E.  63 157 

Huff  v.  State,  12  Okla.  Cr.  App.  138,  152  Pac.  464 336 

Huggins  v.  State  (Tex.  Cr.  App.),  210  S.  W.  804 434 

Hughes  v.   State,  61   Fla.  32,   55   So.  463 358 

Hughes,    State    v 228 

Humphrey,    People    r 72,    144,    152,431 

Humphrey  v.   State   (Ala.  App.),  77  So.  82 140 

Hunter,   True  v 334,   342 

Hutchison,    Harris    v 199,  200 

Hutchison,    Tuttle   v 197 

I 

Illinois,    Booth    v 61 

In  re  Crane,  27  Idaho  671,  151  Pac.  1006,  L.  R.  A.  1918A,  942..         62 
In  re  Food  Conservation  Act   (D.  C.),  254  Fed.  893 229 


TABLE  OF  CASES  CITED  xxi 

In  re  State,179  Ala.  639,  60  So.  285 180,  207 

Intoxicating  Liquors,   State  v 210,  216,  224,  225,  230,  231 

Intoxicating  Liquors  and  Vessels,  State  v 85,  86,  139,  355 

Iowa,    Bartemeyer    v 60,    62,  63 

Irwin   v.    Klamath    County    (Ore.),    183    Pac.    780 330 

J 

Jackson,    Bledsoe    v 436 

Jackson  v.   Gordon   (Miss.),  80   So.  785 137,   139,  202,   3'51,   354 

Jackson  v.   State,   148  Ga.  3'51,  96  S.   E.  1001 64,  71,   131 

Jackson   v.   State/12   Ga.  App.  480,   77   S.    E.   651 386 

Jackson  v.   State,   13   Ga.   App.   147,  78   S.   E.   867 347 

Jackson   v.    State,   107    Miss.    153,  65    So.   1231 443 

Jackson  v.  State   (Tex.  Cr.   App.),  200  S.   E.  150 259,  357,  383,  423 

James,    United    States    v 64,    67,    68 

Jamison,   'State    v 104 

Jaques,    State   v 265,    266 

Jarvis,    State   v 167,    168,   334,   335,   353,   447 

Jefferson  v.  Perry,  18  Ga.  App.  689,  90  S.  E.  365 448 

Jefferson   v.   Perry,   18   Ga.   App.   690,   90   S.   E.   366 448 

Jenkins  v.  State,  4  Ga.  App.  859,  62  S.  E.  574 205 

Jenkins  v.  State   (Ga.  App.),  100  S.  E.  763 438 

Jenkins  v.  State,  11  Okla.  Cr.  App.  168,  145  Pac.  506 276 

Jenkins,    State    v 66 

Jensen,    Southern    Pac.   Co.   v 65 

Jensen,   State  v 215,   226 

Jepson,    Nies    v 190,    334,    341 

Jervey,    Elder   Harrison   Co.  v '    73 

John,   State  v 250,  264,  268,  274 

Johns  v.  State,   13  Ala.  App.  283,   69   So.  259 447 

Johnson,    Grier  i> 197 

Johnson  v.   State,   172   Ala.   424,   55    So.  226,  Ann.    Cas.   1913E, 

296    116,    119 

Johnson   v.   State,   3   Ala.   App.   155,   57   So.   499 413 

Johnson  v.  State,  13  Ga.  App.  371,  79   S.   E.  178 347 

Johnson   v.   State   13   Ga.   App.   654,   79   S.   E.   758 446 

Johnson  v.  State,  6  Okla   Cr.  App.  490,   119   Pac.   1131..- 450 

Johnson  v.  State,  75  Tex.  Cr.  App.  177,  171  S.  W.  211.  .61,  251,  411,  415 

Johnson  v.  State,  81  Tex.  Cr.  App.  71,  193  S.  W.  674 292,  310 

Jones  v.   Montgomery   (Ala.  App.),  77  So.  969 447 

Jones  v.   State,  4  Ala.  App.  159,  58   So.  1011 208 

Jones   v.   State,    12   Ga.   App.   564,   77   S.    E.   892 252,   347 

Jones  v.  State,  17  Ga.  App.  118,  86  S.  E.  284 206 

Jones   v.    State,    108    Miss.    530,    66    So.    987 113 

Jones  v.   State   (Okla.  Cr.  App.),  183   Pac.  519 451 

Jones  v.  Slate,  76  Tex.  Cr.  App.  239,  174  S.  W.  349 247 


xxii  TABLE  OF  CASES  CITED 

Jones,    State   v 100,    176,  357 

Jones  v.  United  States   (C.  C.  A.),  259  Fed.  104 127 

Jones-Hansen-Cadillac    Co.,    State    v 96,   170,    218,  220 

Joy,    People   v 119 

Julius,    State    v 150,    274,  360 

K 

Kansas,  Mugler  v 60,  62,  65,  193 

Kansas  City,  Kansas  City  Berweries  Co.  v 177,  185 

Kansas  'City  Breweries  Co.,  v.  Kansas  City,  96  Kan.  731,  153 

Pac.  523 177,  185 

Kapicsky,  State  v 168,  178 

Kasiska,  State  v , 180 

Kaufman,  Guilbert  v. . 66 

Kearney,  Ex  parte 197 

Kelley  v.  State,  171  Ala.  44,  55  So.  141 244,  259,  263 

Kelly,  State  v ! 271,  287,  359 

Kemp  v.  State,  130  Ark.  175,  196  S.  W.  918 294,  310 

Kendrick  v.  State,  11  Okla.  Cr.  App.  380,  146  Pac.  727 Ill 

Kennan  v.  Commonwealth,  122  Va.  831,  94  S.  E.  186 263 

Kennedy,  Bluthenthal  v 73 

Kerney  v.  State,  21  Ga.  App.  500,  94  S.  E.  625 372 

Kidd  v.  Pearson,  128  U.  S.  1,  32  L.  Ed.  346,  2  Interst.  Com. 

Rep.  232 60,  143 

Kiefer,  State  v 176,  449 

Killeen,  State  v 85,  355,  426 

Killian,  State  v 100,  322 

Killough  v.  State  (Okla.  Cr.  Ap,p.),  183  Pac.  430 261 

Kindrix  v.  State  (Ark.),  212  S.  W.  84 462 

King,  State  v 273 

Kirk  v.  State,  10  Ala.  App.  216,  65  So.  195 278,  399 

Kirk  v.  State,  14  Ala.  App.  44,  70  S.  E.  990 381,  382,  428 

Kirkpatrick  v.  State,  12  Ga.  App.  252,  77  S.  E.  104 164 

Kirkwood  Leisure  Hours'  Social,  etc.,  Club,  State  v 174 

Klamatli  County,  Irwin  v 330 

Klein,  State  v 86,  179,  355 

Knapp,  State  v 169,  186,  189,  192,  193 

Knowles  v.  State,  80  Ala.  9 413 

Koerner,  State  v 265 

Komada  &  Co.  v.  United  States,  215  U.  S.  392,  396,  30  Sup.  <Ct. 

136,  54  L.  Ed.  249  90 

Kunsberg  v.  State,  147  Ga.  591,  95  S.  E.  12 &6,  333 

Kurent,  State  v 62,  199,  200,  285,  375 

L 
Labbe,   People  v 131,  272 


TABLE  OF  CASES  CITED  xxiii 

Labrecque,    State    v 66,    81 

Lacey  v.  State,   135  Ark.  470,   205   S.   W.   814 351 

Ladd,    State    v 266 

Ladson  v.   State,   56   Fla.   54,   47    So.   517 246 

Lafargue,    State    v 403,  404 

Lake  County,  etc.,  Sav.  Co.,  Chicago,  etc.,   R.   Co.  v 432 

Lakomy  v.    People    (Colo.),    178    Pac.    571 386 

Lambie  v.  State,  151  Ala.  86,  91,  44  So.  51 65 

Land   v.   State    (Fla.),    81    So.    159 72 

Land  v.   State,   5    Ga.   App.   98,   62    S.    E.   665 206 

Landers  v.  State   (Tex.  Cr.  App.),  210  S.  W.  694 85 

Lane  v.  Commonwealth,  122  Va.  916,  95  S.  E.  466 246,  336 

Lane  v.  Milieu,  18  Ga.  App.   18,  88  S.   E.  748 347,  348 

Lane  v.  Tuscaloosa,  12  Ala.  App.  599,  67  So.  778 398 

Langston  v.   Hazelhurst,   9   Ga.  App.  449,  71   S.   E.  592 347,  348 

Larson,    Margin    v 180 

Laughter  v.  United  States  (€.  C.  A.),  259  Fed.  94 121,  128,  432 

Law,    Foxworth    v 277 

Laymon,    State    v 252,    403,  406 

Leary,    State    v 188 

Lebrecht   v.    State    (Okla.),    172    Pac.   65 220 

Le  Clair  v.  White,  117  Me.  335,  104  Atl.  516 333 

Lee  v.   State    (Tex.   Cr.  App.),  ?04  S.  W.   110,   112 326 

Lee,    State    v BOS 

Legendre,    State  v 109,  386 

Legg  v.  Anderson,  116  Ga.  401,  42  S.  E.  720 193 

Leisy    Brewing    Co.,    Belden    and    Co.    v 104 

Lemon  v.  Commonwealth,  171  Ky.  S22,  188  S.  W.  858.. 375,  389,  433 

Leonard,   State   v 266 

Lesh,    State    v 149,    261,  283 

Lester,    People    v 205 

Lester  v.  State,  8  Ala.  App.  376,  62  So.  337 263 

Lewis,   Castle  v 280,   337,  452 

Lewis  v.  State,  6  Ga.  App.  203,  64  S.  E.  701 446 

Lewis  v.  State,  6  Ga.  App.  779,  65  S.  E.  842 84 

Lewis  v.  State,  17   Ga.  App.  445,   87   S.   E.  709 269 

Lieber,    State    v 121,  286 

Li  Fieri,  State  v 254,  269 

Lindsay  v.   State,  138   Ga.   818,   76   S.   E.   369 388 

Lindsay  v.  State,  9  Okla.  Cr.  App.  730,  132  Pac.  1194 450 

Lippman   v.   State,   72    Fla.   428,   73   So.   357 222 

Liquor  Trans.  Cases   v.   State,   140  Tenn.    (13   Thompson)    582, 

205    S.    W.    423 120,  123,    124,    130,    258,  277 

Little,    State    v +  362 

Littlefield  v.   State,   22    Ga.   App.   783,   97   S.   E.  259 Ill,   320 

Littleton  v.  State,  20  Ga.  App.  746,  93  S.  F    ISO '.372,  402 


xxiv  TABLE  OF  CASES  CITED 

Lochinar   v.    State,    111    Md.    660,    76    Atl.    586,    19    Ann.    Cas. 

579  103 

Loeb  v.  State,  6  Ga.  App.  23,  64  S.  E.  338 103 

Lofton  v.  Collins,  117  Ga.  434,  43  S.  E.  780,  61  L.  R.  A.  150..  193 

Loh  v.  Howard,  141  Ga.  509,  81  S.  E.  198 190 

Long  v.  Holley,  177  Ala.  508,  58  So.  264 148 

Longmire  v.  State,  75  Tex.  Cr.  App.  616,  171  S.  W.  1165,  L. 

R.  A.  1917A,  726 64,  248 

Looper  v.  State,  74  Tex.  Cr.  App.  144,  167  S.  W.  432 434 

Lopez  v.  State  (Tex.  Cr.  App.),  208  S.  W.  167 109 

Loserth,  Reusch  v 182 

Loudermilk  v.  State,  4  Ala.  App.  167,  58  So.  180 318,  368,  369 

Louisville,  etc.,  R.  'Co.,  Commonwealth  v 277 

Louisville,  etc.,  R.  Co.  v.  State  (Ala.  App.),  76  So.  505,  512 66 

Lovell,  State  v 62 

Lowery  v.  State,  135  Ark.  159,  203  S.  W.  838 99,  296,  408,  429 

Loyd  v.  Dollinson,  194  U.  S.  445,  24  Sup.  Ct.  703,  48  L.  Ed. 

1065  143 

Lucchesi  v.  Commonwealth,  122  Va.  872,  94  S.  E.  925 65,  382 

Lumpkin  v.  Atlanta,  9  Ga.  App.  470,  71  S.  E.  755 88,  344 

Lunsford,  State  v 274 

Lupo  v.  State,  118  Ga.  759,  45  S.  E.  602 106 

Luther  v.  State,  83  Neb.  455,  120  N.  W.  125,  20  L.  R.  A.,  N. 

S.,  1164n 66 

Luther,  United  States  v 124,  250,  259 

Lynch,  Purity  Extract,  etc.,  Co.  v 60,  61,  64,  65,  66,  93,  193 

Lynch,  State  v 92 

Lynn  v.  State,  10  Ala.  App.  223,  65  So.  92 456 

Lyon  v.  City  Club,  83  S.  C.  509,  65  S.  E.  730 88 

Lyon,  State  v 172,  173,  181 

Lyons,  State  v 402 

M 

Maas,  Bowers  v 183,  186,  335 

McAdams  v.   State,   9   Ga.   App.   166,   70    S.    E.   893 247,   251,   252 

McAdams  v.  Wells  Fargo  &  Co.  Exp.  (D.  C.),  249  Fed.  175..       128 

McAlester  v.  State   (Okla.  Cr.  App.),  174  Pac.  1106,  1107 443,  450 

McAlester  v.   State    (Okla.    Cr.    App.),    180   Pac.    718 370 

McAllister  v.   State,   156  Ala.   122,   47   So.    161 143,  276,   352,    429 

McAllister  v.   State,  17  Ga.  App.  159,  86  S.  E.  412 389 

McCall,    Hartsville    v 125 

McCasky,    State    v 149f    382 

McConathy  v.  Deck,  34  Colo.  461,  466,  83  Pac.  135,  4  L.  R.  A., 

N.  S.  358N,  7  Ann.  Cas.  896 225 

McCowen,    State    v 351t  352 

McCuen  v.  State,  75  Tex.  Cr.  App.  108,  170  S.  W.  738..  386 


TABLE  OF  CASES  CITED  xxv 

McCulloch,   Everett  v 219 

Macek,   State  v 62,  257,  272,  285 

McElligott,   Hoffman    Brewing   Co.  v 64,   75,   89 

McElwee  v.  State,  73  Tex.  Cr.  App.  445,  165  S.  W.  927 360 

McGee  v.  State   (Ga.  App.),  100  S.  E.  733 298 

McGovern  v.  State,  11  Ga.  App.  267,  74  S.  E.  1101 347 

McQuire,    State    v 356 

McHenry,    Berner  v 152 

Mclntosh  v.  State,  140  Ala.  137,  37  So.  223  371 

Mack  v.  State,  116  Ga.  546,  42  S.  E.  776,  59  L.  R.  A.  602 343,  347 

Mack  v.  Westbrook,  148  Ga.  690,  98  S.  E.  339,  341.  .60,  61,  215,  221,  223 

McKnight  v.  United  States,  164  C.  C.  A.  527,  252  Fed.  687 157 

McKone,    State   v 419,    420 

McLean  v.  People   (Ala.),  180  P.  676.. 85,  86,  251,  293,  310,  322, 

330,  355,  379,  408,  415 

McMillian  v.  Anderson,  183  la.  873,  167  N.  W.  599 448 

McMillian  v.  Metcalfe  (la.),  174  N.  W.  481.. 188 

McMillan  v.  Miller  (la.),  174  N.  W.  259   453 

McNeal  v.  State   (Okl.   Cr.  App.),  179  Pac.  943,  944 123,  240,  258 

McNeil  v.  State,  125  Ark.  47,  187  S.  W.  1060 246 

Macon,    Borders    v 392,    419,    420,    431 

Macon,    Seabrooks    v 448 

Maguire,    State   v 167,    187,    424 

Maisel  v.  State    (Ala.   App.),   81    So.   348 326,   336 

Malcolm  v.  United  States  (C.  C.  A.),  256  Fed.  363 258,  378 

Malick  z:   State  (Neb.),  169  N.  W.  5 316,  346 

Malone  v.   State   (Ark.),  214  S.   W.  36 311 

Manship,    State    v 392 

Maples  v.  State   (Ala.),  82  So.  183 215,  226 

Marasso  v.  Van   Pelt   (Fla.),  81   So.   529 69 

Marastoni,  State  v 67,  99,  101 

Marks  v.  State,  159  Ala.  71,  80,  48  So.  864,  133  Am.  St.  Rep.  20. 

65,  80,  81,84,  85,  86,  87,  91,  92,  94,  263,  355,  413 

Markuson,  State  v 197 

Maroun,    Shreveport   v. 107,    193 

Maroun,    State    v 241 

Marquardt,   State  v 202 

Marshall,   State   v 172,    182,   185 

Marston  v.  Biegelow,  150  Mass.  45,  22  N.  E.  71,  5  L.  R.  A.  43..       348 

Martin  v.  Commonwealth   (Va.),  100  S.  E.  836 127,  136 

Martin,    Gulfort    v 272 

Martin,    Nesmith    v 232 

Martin  v.  Rome,  9  Ga.  App.  574,  71  S.  E.  897 344 

Martin  v.   State    (Ala.   App.),  78   So.   322 396,   409 

Martin,   State  v 145,   151 


xxvi  TABLE  OF  CASES  CITED 

Martoni   v.    State,    74   Tex.    Cr.   App.    90,    167    S.    W.    349.. 376, 

,  383;  385,  460 

Marvin  v.  Larson,  153  Wis.  488,  140  N.  W.  285 180 

Massachusetts,   Beer  Co.  v 60,  63 

Matarazza,    State    v 275 

Mathews,    State    v 305 

Mattox   Cigar,  etc.,    Co.,   State   v 66,   91 

Mayer  v.   United   States    (C.   C.   A.),   259   Fed.   216 246 

Maynes  v.  State,  6  Okla.   Cr.  App.  487,  119  Pac.  644 123,  240 

Mead  v.  Stratton,  87  N.  Y.  493,  41  Am.  Rep.  386 97 

Medlock  if.   State,   79   Tex.    Cr.   App.   322,   185   S.   W.   566..  106, 

397,   398,    401 

Meloche,  People  v 165,  286 

Merriwether  v.  Tuscaloosa,  13  Ala.  App.  651,  69  So.  258 342 

Metcalfe,    McMillan   v 183 

Meyers,  State  v 292,  302,  311 

Michigan,    Eberle  v 60,   144 

Midland  Aerie  No.  412,   Fraternal   Order  of  Eagles,   State  r. .       179 

Milhiser  v.   Gandrup   (la.),   146  N.   W.  843' 151 

Milledgeville,    Collins    v 360 

Millen,    Lane    v 347,    348 

Miller,    McMillan    v 453 

Miller,  State  v 83,  84,  437 

Mills  v.  State,  11   Ga.  App.  383,  75   S.   E.  266 383,   385 

Milwaukee  Beer  Co.  v.  State,  55  Okla.  181,  155  Pac.  200 208 

Minery,    United    States    v 75,    76 

Missouri  Athletic  Club,  State  v 97 

Missouri,  etc.,  R.  Co.  v.  Danciger,  160  C.   C.  A.  176,  248  Fed. 

36 123 

Mitchell  v.  State,  20  Ga.  App.  778,  93  S.  E.  709,  710 112 

Mobley,  Halle  v 2:24 

Montgomery,    Benjamin    v 356 

Montgomery,   Jones   v 447 

Montgomery  v.  State,  11  Okla.  Cr.  Ap,p.  415,  142  Pac.  1048 377 

Monumental  Brewing  Co.  v.  Whitlock  (S.  C.),  97  S.  E.  56 104 

Monyean  v.   State,  18  Ariz.  491,  62  Pac.  135,  L.   R.  A.   1917D, 

1014n     Ill 

Moody  v.  State,  14  Ga.  App.  523,  81  S.  E.  588 115 

Moore  v.  State,  12  Ala.  App.  243,  67  So.  789 304,  383,  384 

Moore,    State    v 249 

Moran,    Fine    v 60     66,    71 

Morgan  v.  Cedartown,  13  Ga.  App.  139,  78  S.  E.  863 347 

Morrilton,  Scoggin  v 349,  433,   440 

Morris  v.  State  (Okla.  Cr.  App.),  180  Pac.  561 445 

Morse  v.  State,  10  Ga.  App.  61,  72  S.  E.  534 416 

Morton  v.  State   (Tenn.),  209  S.  W.  644 352 


TABLE  OF  CASES  CITED  xxvii 

Morton,  State  v 145,  146,  147,  352 

Moses  v.  State,  100  Miss.  346,  56  So.  457 359 

Mosley  v.  State,  107  Miss.  158,  65  So.  124 367 

Moss  v.  State,  3  Ala.  App.  189,  58  So.  62 287 

Mostella,  State  v 356,  416 

Motlow  v.  State,  125  Tenn.  547,  145  S.  W.  177,  L.  R.  A.  1916F, 

177  62 

Mountain  City  Club,  State  v 178 

Mueller,  People  v 92,  412 

Mugler  v.  Kansas,  123  U.  S.  623,  662,  8  Sup.  Ct.  273,  31  L.  Ed. 

205  60,  62,  65,  193 

Mull,  State  v 98 

Mulledgeville,  Bloodworth  v 391 

Mullen  v.  Howell  (Wash.),  181  Pac.  920 58,  59 

Muller,  State  v 240 

Mulligan,  Perry  v 224 

Mulling  v.  State,  17  Ga.  App.  828,  88  S.  E.  709 347 

Mullins  v.  Commonwealth,  115  V.  945,  79  S.  E.  324.. 83,  262,  268,  363' 

Mullins  v.  State  (Ga.  App.),  100  S.  E.  755 433 

Mundy  v.  State,  9  Ga.  App.  835,  72  S.  E.  300 293,  3<00,  308 

Munn  v.  State,  5  Okla.  Cr.  App.  245,  114  Pac.  272 122 

Murphy  v.  California,  225  U.  S.  623,  3*2  Sup.  Ct.  697,  56  L.  Ed. 

1229,  41  L.  R.  A.,  N.  S.,  153 61 

Murphy  v.  Peabody,  63  Ga.  522 224 

Murray  v.  State,  19  Ariz.  49,  165  Pac.  315 291,  3-27,  417,  450 

Myers  v.  State,  16  Ga.  App.  266,  85  S.  E.  206 347 

N 

National    Mason   Acci.   Ass'n   v.   Burr,   57   Neb.   437,   77    N.   W. 

1098    348 

Naughton,    Shideler  v 183 

Neal  v.   Commonwealth    (Va.),  98   S.   E.   629 336,  337,  338,   339 

Neal  v.   State    (Ga.   App.),    100   S.    E.    12 317 

Nelson  v.  State    (Ark.),  212  S.   W.   93 288,   353,   354,   460 

Nesmith  r.  Martin   (Ga.),  98  S.  E.  551 232 

New,    Wilson    v 65 

Newberry  v.  Dorrah,   105   S.   C.  28,  89-  S.   E.  402 131 

Newlin,    State   v 364 

New  York,  Adams   Exp.    Co.  v 90 

Nicolay,   State  v 86,    147 

Nies  v.  District  Court   (la.),   161  N.  W.  316..  193,  194,   195,   196. 

197,  198,  199,  200,  335,  377,   393 

Nies  v.  Jeyson,  174  la.  188,  156  N.  W.  292 3,  190,  334 

Nixon  v.  State,  92  Neb.   115,   138   N.   W.   136,   137 307,  435 

Noble  v.  People   ('Colo.),  177  Pac.  970 224,  225,  231 

Norfolk,   etc.,   R.   Co.,    Clark  v 208 


xxviii  TABLE  OF  CASES  CITED 

Norred   v.    State    (Ala.   App.),    82    So.    559 325 

North   Carolina,  Seaboard   Air   Line   Railway  v 60,   61,  68 

Northern,  etc.,  Co.  v.  Brenneman   (C.  C.  A.),  259  Fed.   514 221 

Nowell  v.  State,   18  Ga.  App.   143,  88   S.  E.   909 132,   444 

O 

O'Brien  v.   State,   3   Ala.   App.    173,    57    So.   1028 281 

O'Connell,    State    v 66 

O'Donnell  v.   Commonwealth,    108   Va.   882,   62    S.    E.   373..  107, 

237,  366,  377 

Ogleston,    State    v 363,  437 

Ohio  v.  Cox  (D.  C.),  257   Fed.  334,  335 57,  58 

O'Kelley,    State    v 151,  153 

Oldacre  v.   State    (Ala.  App.),  75   So.   827 284,  319 

One   Buick  Automobile,   United  States  v 217 

One    Cadillac  Automobile   v.   State    (Okla.),   172    Pac.   62 220 

One  Cadillac  Automobile  v.   State   (Okla.),   182   Pac.   227 215 

One   Cadillac    Eight   Automobile,    United    States   v 217 

One   Ford   Automobile,   United    States   v 216 

One   Ford   Five   Passenger  Automobile,   United   States  v 220 

One   Moon   Automobile   v.    State    (Okla.),    172    Pac.   66 220 

One   Packard  Automobile,   State  v : 220 

One  Seven   Passenger  Paige  Car,  United   States  v 227 

O'Rear  v.   State,   15   Ala.   App.    17,   72    So.    505 131 

Orr  v.    Cornell    (Ala.),    156   N.   W.   296 198,  199 

Otis  v.  Parker,  187  U.  S.  606,  23  Sup.  Ct.  168,  47   L.   Ed.  323..  61 

O'Toole,   State  v 387,   388,  405 

Otto,    State    v 275,  455 

Overton  v.  State,  11  Okla.  Cr.  App.  1,  140  Pac.  1135 378,  381 

Owens  v.  Henderson  Brewing  Co.  (Ky.),  215  S.  W.  90 73 

P 

Page  v.  State   (Ga.  App.),  99   S.   E.  55 256,  388 

Pape  v.  State,  108  Miss.  706,  67   So.   177 456 

Pappenburg  v.  State,  10  Ala.  App.  224,  65   So.  418 432,   450 

Park  v.  State,  120  Okla.   Cr.  App.   302,  155   Pac.  494 239 

Parker,    Otis    v 61 

Parker  v.  State  (Ga.  App.),  100  S.  E.  38 133 

Parks  v.   State,  21   Ga.  App.   506,  94   S.   E.   628,   629 444 

Pate  v.  State   (Okla.  Cr.  App.),  180  Pac.  559 445 

Patterson  v.  State,  8  Ala.  App.  420,  62  So.   1023 387,  391,   394 

Patterson  v.   State    (Ark.),  215   S.   W.   629 99,   301,   381,   414 

Patterson  v.  State  (Ga.  App.),  100  S.  E.  641 88 

Payne  v.  State,   124  Ark.   20,  186  S.  W.   612 ,. 456 

Peabody,    Murphy   v 224 

Pearson,    Kidd    v 60,    143 


TABLE  OF  CASES  CITED  xxix 

Peebles  v.  State,  105  Miss.  834,  63  So.  27 286,  356 

Peede,  Ex  parte 157 

Peloquin,  State  v 261,  262 

Pennell  v.  State,  141  Wis.  35,  123  N.  W.  115 66 

Pensacola,  etc.,  S.  S.  Co.,  State  v 230,  231 

People  v.  Allen  (Cal.  App.),  174  Pac.  374 327,  351,  411 

People  v.  Argo,  237  111.  173,  86  N.  E.  679 374 

People,  Belfe  v 205,  206,  238,  245,  378 

People  v.  Bell,  170  Mich.  675,  137  N.  W.  107 146 

People  v.  Bullock,  173  Mich.  397,  139  N.  W.  43 133,  377 

People  v.  Calliari,  196  Mich.  475.  163  N.  W.  154,  155  322,  397 

People  v.  Craig,  128  App.  Div.  908,  112  N.  Y.  Supp.  1142  96 

People  v.  Dann,  183  Mich.  554,  149  N.  W.  1002  350 

People  v.  Emmons,  178  Mich.  126,  144  N.  W.  479,  Ann.  Cas. 

1915D,  425 91,  280,  294,  371,  412 

People,  Fehringer  v 257,  274 

People  v.  Galliari,  196  Mich.  475,  163'  N.  W.  154  444 

People  v.  Goldberg,  287  111.  238,  122  N.  E.  530  267,  321,  374 

People  v.  Harris  (Mich.),  168  N.  W.  447  150 

People  v.  Hatinger,  174  Mich.  333,  140  N.  W.  648  280 

People  v.  Humphrey,  194  Mich.  10,  160  N.  W.  445  ..72,  144,  152,  431 

People  v.  Joy,  30  Cal.  App.  36,  157  Pac.  507  119 

People  v.  Labbe  (Mich.),  168  N.  W.  451 131,  272 

People,  Lakony  v 386 

People  -v.  Lester,  195  Mich.  477,  162  N.  W.  72  205 

People,  McLean  v 85,  86,  251,  291,  293,  310,  322,  330,  355, 

379,  408,  415 

People  v.  Meloche,  186  Mich.  536,  152  N.  W.  918  165,  286 

People  v.  Mueller,  168  Cal.  526,  143'  Pac.  750  92,  412 

People,  Noble  v 224,  225,  231 

People,  Ryan  v 402 

People  v.  Silver,  286  111.  496,  122  N.  E.  115  298,  433 

People  v.  Strickler,  25  Cal.  App.  60,  142  Pac.  1121  93 

People  v.  Sue  Chung  Kee,  26  Cal.  App.  732,  148  Pac.  529 397 

People  v.  Wheeler,  185  Mich.  164,  151  N.  W.  710  60,  204 

Perdue  v.  State,  135  Ga.  277,  69  S.  E.  184 290 

Perello,  State  v 249 

Perro  v.  State,  113  Me.  493,  94  Atl.  950  222 

Perry,  Jefferson  v 448 

Perry  v.  Mulligan,  58  Ga.  479  224 

Perry  v.  Southern  Exp.  Co.  (Ala.),  81  So.  619  129 

Peters,  State  r 400 

Petus  v.  Commonwealth,  123  Va.  806,  96  S.  E.  161,  162 132 

Peyton  v.  State  (Okla.  Cr.  App.),  1S3  Pac.  639  295,  317 

Phelps  v.  State  (Ala.  App.),  75  So.  877  460 

Philips,  State  v 93' 


xxx  TABLE  OF  CASES  CITED 

Phillips   v.    State    (Okla.    Cr.    App.),    183    Pac.    521 387 

Phillips  v.  Stapleton   (Ga.  App.),   97   S.   E.   885 222 

Pierce,    State   v 397,    398 

Pine   v.   Commonwealth,    121    Va.   812,   93    S.    E.    652.... 64,   204, 

238,  252,  288,  300,  311,  312,  336,  368,  457 

Pines  v.  State,  15  Ga.  App.  348,  83  S.   E.  198   256,  264,  273 

Pitts   v.   Atlanta,    14    Ga.    App.    399,    81    S.    E.    249 444 

Pitts  v.  State,  17  Ga.  App.  836,  88  S.  E.  712   457 

Flair  v.  State  (Ga.  App.),  99  S.  E.  61    317 

Plunkett,    Delaney    v 62,    131,  255 

Pope  v.  State,  108   Miss.  706,  67  So.   177    114,  269 

Pope,    State    v 120,450 

Porras  v.   State,   19  Ariz.   131,   166   Pac.  288 386 

Preyer  v.    United    States    (C.    C.    A.),    260    Fed.    157 .'....        129 

Price  v.  State   (Tex.  Cr.  App.),  202  S.  W.  948   316 

Proctor  v.  State   (Okla.  Cr.  App.),  176  Pac.  771    2b5,  272 

Provencher,    State    v 116 

Pruett  v.  State,  18  Ga.  App.  313,  89  S.  E.  378   ; .       440 

Purity  Extract,  etc.,   Co.  v.  Lynch,   100  Miss.  650,  56  So.   316... 66,  93 
Purity  Extract,  etc.,  Co.  v.  Lynch,  226  U.  S.  192,  201,  33   Sup. 

Ct.  44,  57   L.   Ed.   184    60,   61,   64,   65,   66,   193 

Q 

Quinn  v.  Reed,  130  Ark.  116,  197  S.  W.  15   156 

Quinn  v.  State,   15  Ala.  App.  635,  74  So.   743    3'68 

Quinn  v.   State,  22   Ga.  App.   632,  97   S.   E.   84    396 

Quinn  v.  State,  8  Okla.  Cr.  App.  478,  128  Pac.  1104    450 

R 

Radke,    State    v 305 

Ragan  v.  State,  9   Ga.  App.  871,  72   S.   E.  441    362,  400 

Ragghianti,    State    v 180,    181,  198 

Rainer  Brewing  Co.,  Great  Northern  Pac.  S.  S.  Co.  v 123,  158 

Randall,    State    v 333,  373 

Ranier    Brewing    Co.,    United    States    v 75,89 

Ralph,     State    v 191,  233 

Rash  v.  State,  13  Ala.  App.  262,  69  So.  239 107.  250,  335,  363,  403 

Rast  v.  Van   Deman,   etc.,   Co.,   140  U.  S.  342,  36  Sup.   Ct.  370, 

60  L.  Ed.  679,  L.  R.  A.  1917 A,  421n,  Ann.  Cas.  1917B,  455..  61 

Raub,    State    v 431 

Raven,    State    v 99,     100,  270 

Rawlings,    State    v 334,  342 

Ray   v.    State    (Del.),    100    Atl.    472 225,    320,  361 

Raymert  v.  Smith,  5  Cal.  App.  380,  90  Pac.  470 197 

Reddick  v.  State,  15  Ga.  App.  437,  83  S.  E.  675 370,  396,  403,  406 

Reed,    Quinn    v 156 

Regadany  v.  State,  171  Ind.  387,  391,  86  N.  E.  449..  253 


TABLE  OF  CASES  CITED  xxxi 

Reisen,    State    v 172 

Reismier  v.  State,  148  Wis.  593,  135  N.  W.  153 431 

Ren   v.   State,    9    Okla.  €r.    App.    167,    132    Pac.    1131 450 

Reno  Brewing   Co.,   State  v 97,  177 

Reno   Brewing   Co.,   Thatcher  v 61,   80,  81,  82 

Reusch  v.  Loserth,  158  la.  227,  139  N.  W.  454 182 

Reynolds  v.  State,  18  Ariz.  388,   161  Pac.  885 296,  316,  432 

Richardson,    State    v 342 

Rigrish   v.   State,   178   Ind.   470,   99   N.    E.   786 256 

Rippey  v.  Texas,  193  U.  S.  504,  24  Sup.  Ct.  516,  48  L.   Ed.  1065 

143 

Rivard  v.  State,  133  Ark.  1,  202  S.  W.  39 122 

Robbins  v.  State,  12  Okla.  Cr.  App.  412,  157  Pac.  1027 258 

Roberts  v.  State,  4  Ga.  App.  207,  60  S.  E.  1082 96,  205 

Roberts  v.  State,  8  Ga.  App.  476,  69  S.  E.  585 103 

Robertson  v.  State  (Ga.  App.),  60  S.   E.  1082 90 

Robertsore  v.   State,   130  Ark.   158,   197   S.  W.  31 126,  297 

Robertson,    Territory    v 175 

Robilio  v.  United   States   (C.  C.  A.),  259   Fed.  101 400,  452,  453 

Robinson  v.  'Commonwealth,  118  Va.  785,  87  S.  E.  553 280,  302,  359 

Robinson  v.  State   (Ind.),  24  N.  E.  489 295,  317 

Robinson  v.   State,  81   Tex.   Cr.  App.  448,  196  S.  W.   186 358 

Robinson — Pettet    Co.,    Commonwealth   v 358 

Robinson-Pettet    Co.,    Commonwealth    v 298 

Roden  v.  State,  3  Ala.  App.  193,  58   So.  74 289,  390 

Roden  v.  State,  3  Ala.  App.  199,  58  So.  72 360 

Rogers  v.   State    (Ala.   App.),   73    So.   994 276,  288 

Rogers  v.  State,  133  Ark.  85,  201  S.  W.  845 244,  342,  243,  389 

Rogers,    State    v 168 

Rome,    Martin  v 344 

Rose  v.  State,  4  Ga.  App.  588,  62  S.  E.  117 165,  166,  286 

Rosenberg  v.  State,  5  Ala.  App.  196,  59  So.  366 271,  307,  403 

Rosenoff  v.  Cross,  95  Wash.  525,  164  Pac.  236 145 

Ross  v.   State    (Okla.   Cr.   App.),   180   Pac.   573 451 

Ross,  State  v 152,     163,  377 

Rothschild  v.  State,  12  Ga.  App.  728,  78  S.   E.  201 135,  292 

Rouston  v.  Fountain,  118  La.  53,  42  So.  644 193 

Roya,   Ex  parte 70,  323 

Ruh,   Commonwealth  v 174,  175 

Rupard  v.   State,   7   Okla.   Cr.   App.  201,   1?2  Pac.   1108 122 

Rush   v.    Commonwealth    (Ky.),    47    S.    W.    586 193 

Russell,    State   v 338 

Rust  v.  District  Court,  162  Ta.  244,  143  N.  W.  1086 199 

Ruston  v.  Fountain,  118  La.  53,  42  So.  644 107 

Ryan  v.   People   (Colo.),   180  Pac.  84 402 

Ryan,   State  v 115,  363,  434 


xxxii  TABLE  OF  CASES  CITED 


Saddler  v.  State,  148  Ga.  462,  97  S.  E.  79 - 131 

Sadler  v.  State,  165  Ala.  109,  51   So.  564 371 

Saleeby,    Dillon    v €9 

Salley  Alton  v 173 

Salley,  State  v 459 

Salvador  v.  State,  79  Tex.  Cr.  App.  343,  185  S.  W.  12 84,  292,  412 

Sanders  v.  State  (Ala.  App.),  79  So.  312 118 

Sanders  v.  State,  115  Ark.  376,  171  S.  W.  142 363,  375 

Sangfield  v.  State,  18  Ga.  App.  680,  90  S.  E.  352 321 

Sapp  v.  State,  2  Ala.  App.  190,  56  So.  45 298,  368,  369 

Sarlin,  State  v 134,  251,  253 

Sarlls  v.  United  States,  152  U.  S.  570,  14  Sup.  Ct.  720,  38  L.  Ed. 

556    80 

Sasser  v.  State,  73  Tex.  Cr.  App.  539,  166  S.  W.  1160 400 

Sawyer  v.  Blakely,  2  Ga.  App.  159,  58  S.  E.  399 448 

Schave  v.  State,  4  Okla.  Cr.  App.  285,  111  Pac.  962 258 

Schmauder  United  States  v 75,  76,  82,  88,  89,  90,  270,  282,  346 

Schmidt,   State  v 270,  453 

Schmidt  Brewing  Co.  v.  United  States  (C.  C.  A.),  254  Fed.  695, 

696    159 

Schmitt  v.  Cook  Brewing  Co  (Ind.),  120  N.  E.  19,  22.  .62,  63,  67,  80,  144 

Schoppe,  State  v 223 

Schulmeyer  v.   State    (Ind.),   124   N.   E.  490 258,  432 

Schweiter,   State  v 265 

Scoggin  v.  Morrilton,  124  Ark.  585,  187  S.  W.  445 349,  433,  440 

Scoggins  v.  United  States  (C.  C.  A.),  255  Fed.  825 202,  350, 

441,  442 

Scott  v.  State,  150  Ala.  59,  43  So.   181 371 

Scott  v.  State,  3  Ala.  App.  142,  57  So.  413 103,  113,  242 

Scott  v.  State,  18  Ga.  App.  309,  89  S.  E.  349 347,  348 

Scott  v.  State,  37  N.  D.  90,  163  N.  W.  813 168 

Scott  v.  State,  70  Tex.  Cr.  App.  57,  153  S.  W.  871 296 

Seaboard  Air-Line   R.  Co.,  State  v 62,   154,  464,  465 

Seaboard  Air  Line  Railway  v.  North  Carolina,  245  U.  S.  298,  38 

Sup.  Ct.  96,  62  L.  Ed.  299 60,  61,  68 

Seaboard  Air  Line  Railway  v.  State   (Ga.  App.),  97   S.   E.  549 

206,  426 

Seabrooks  v.  Macon,  17  Ga.  App.  348,  86  S.  E.  781 448 

Seahorn,  State  v 308 

Sears,   Bird  v 330,   449,  454 

Seattle  v.  Brookins,  98  Wash.  290,  167  Pac.  940 390 

Seattle  v.  Foster,  47  Wash.  172,  91  Pac.  642 96 

Seattle  v.  Hewetson,  95  Wash.  612,  164  Pac.  234 424,  430 

Seattle   Brewing,   etc.,    Co.,    Stratford   v 60 

See,  State  v 169,  315 


TABLE  OF  CASES  CITED  xxxiii 

Sellers,  Farmer  v 210,  211 

Sellers  v.  State,  11  Okla.  Cr.  App.  588,  149  Pac.  1071 333,  336 

Sewell  v.  State,  11  Ga.  App.  754,  75  S.  E.  1135 443 

Shaneyfelt  v.  State,  8  Ala.  App.  370,  62  So.  331 92,  367,  436 

Sharpe  v.  State  (Okla.),  181  Pac.  293 220 

Shaw  v.  Atlanta,  11  Ga.  App.  391,  75  S.  E.  486 435 

Shaw  v.  State,  3  Ga.  App.  607,  60  S.  E.  326 347 

Shawnee  Nat.  Bank  v.  United  States,  161  C.  C.  A.  509,  249  Fed. 

583 217,  219,  226,  227,  233 

Shelton,  State  v 354 

Shepherd  v.  State,  76  Tex.  Cr.  App.  307,  174  S.  W.  609 305,  375 

Shideler  v.  Naughton,  163  la.  616,  145  N.  W.  280 188 

Shideler  v.  Tribe  of  Sioux,  158  la.  417,  139  N.  W.  897 134,  189 

Shiflett  v.  Commonwealth,  114  Va.  876,  77  S.  E.  606 262 

Shivers  v.  State,  7  Ala.  App.  110,  61  So.  467 250 

Shivers,  State  v 250 

Shreveport  v.  Maroun,  134  La.  490,  64  So.  388 107,  193 

Sickel  v.  Comonwealth  (Va.),  97  S.  E.  783 247,  258,  465 

Sickel  v.  Commonwealth  (Va.),  99  S.  E.  678 98,  127,  249 

Silka,  State  v 187,  188,  189 

Sills  v.  State,  76  Ala.  92 245 

Silva  v.  State,  11  Okla.  Cr.  App.  12,  141  Pac.  235 433 

Silver,  People  v 298,  433 

Silz  v.  Hesterburg,  211  U.  S.  31,  29  Sup.  Ct.  10,  53  L.  Ed.  75 61 

Simmerson,  State  v 134 

Simmons  &  Co.,  Thompson  v 186 

Simons,  State  v 134,  377,  378,  379 

Simpson  v.  Eastman,  16  Ga.  App.  185,  84  S.  E.  721 347,  348 

Simpson  v.  State  (Okla.  Cr.  App.),  173  Pac.  529 109 

Simpson,  United  States  v 122,  249 

Sixo,  State  v 333 

Skelton,  Thornton  v 192,  223,  352,353 

Skermetta  v.  State,  104  Miss.  233,  61  So.  305 105 

Skinner  v.  Thomas,  171  N.  C.  98,  85  S,  E.  976,  L.  R.  A.  1916E, 

338n  215,  226 

Skoglund,  Fisher  v 181,  190 

Slaten  v.  State,  10  Ala.  App.  185,  65  So.  85 442 

Slaughter  v.  State,  17  Ga.  App.  332,  86  S.  E.  741 347 

Small,  State  v 166,  357 

Smiling  v.  United  States  (C.  C.  A.),  258  Fed.  235 438 

Smith,  Griffin  v 229,  230 

Smith,  Raymert  v 197 

Smith  v.  Spencer-Dowler  Co.  (Ga.  App.),  100  S.  E.  651 220 

Smith  v.  State,  155  Ala.  102,  46  So.  753 245 

Smith  v.  State,  2  Ala.  App.  216,  56  So.  39 371 

Smith  v.  State,  9  Ga.  App.  230,  70  S.  E.  969 440 


xxxiv  TABLE  OF  CASES  CITED 

Smith  v.  State,  12  Ga.  App.  482,  77  S.  E.  651 392 

Smith  v.  State,  14  Ga.  App.  577,  81  S.  E.  801 322,  343,  347 

Smith  v.  State,  17  Ga.  App.  118,  86  S.  E.  283 84 

Smith  v.  State,  21  Ga.  App.  143,  94  S.  E.  62 431 

Smith  v.  State  (Okla.  Cr.  App.),  181  Pac.  942 126,  409,  410 

Smith  v.  State  (Okla.  Cr.  App.),  182  Pac.  730 446 

Smith,  State  v 237,  264,  267,  318,  323,  326 

Snead  v.  State,  7  Ala.  App.  118,  61  So.  473 436 

Snead  v.  State,  134  Ark.  303,  203  S.  W.  703 344 

Snearley,  Batten  v 188 

Snell,  State  v 151 

Snider  v.  State,  59  Ala.  64 398 

Snidery.  State,  81  Ga.  753,  7  S.  E.  613,  12  Am.  St.  Rep.  350 88 

Soucie,  State  v 210 

Southern  Exp.  Co.,  Black  v 66 

Southern  Exp.  Co.  v.  Commonwealth,  177  Ky.  767,  198  S.  W. 

207  240 

Southern  Exp.  Co.,  Commonwealth  v 154 

Southern  Exp.  Co.,  Hudgens  v 157 

Southern  Exp.  Co.,  Perry  v 129 

Southern  Exp.  Co.  v.  State,  188  Ala.  454,  66  So.  115 121,  155, 

156,  160,  185 

Southern  Exp.  Co.  v.  State,  1  Ga.  App.  700,  58  S.  E.  67 252 

Southern  Exp.  Co.  v.  State  (Ga.  App.),  97  S.  E.  550 294,  452 

Southern  Exp.  Co.  v.  State  (Ga.  App.),  100  S.  E.  109 122 

Southern  Exp.  Co.  v.  State  (Ga.  App.),  100  S.  E.  791 122 

Southern  Exp.  Co.,  State  v 160,  203,  228 

Southern  Exp.  Co.  v.  Whittle,  194  Ala.  406,  423,  69  So.  652,  L. 

R.  A.  1916-C,  278 65,  334 

Southern  Pac.  Co.  v.  Jensen,  244  U.  S.  205,  217,  37  Sup.  Ct.  524, 

61  L.  Ed.  1086,  Ann.  Cas.  1917E,  900 65 

Southern  Products  Co.  v.  Franklin,  etc.,  Co.,  183  Ind.  123,  124, 

106  N.  E.  872 432 

Spain,  State  v 266 

Spencer — Dowler  Co.,  Smith  v 220 

Spigener  v.  State,  11  Ala.  App.  296,  66  So.  896 241,  287,  370, 

403,  405.  428 

Spirituous  Liquors,  State  v 223 

Sponnick  v.  Duluth,  123  Minn.  528,  143  N.  W.  970 230 

Springer  v.  State,  126  Ark.  223,  190  S.  W.  101 422 

Springer  v.  State,  129  Ark.  106,  195  S.  W.  376 264,  419,  422 

Standard  Brewery,  United  States  v 270 

Stanley,  State  v 107,  257,  389,  403 

Stapleton,  Phillips  v 222 

Stapleton  v.  State,  19  Ga.  App.  36,  90  S.  E.  1029 290 

Starr  v.  State,  12  Ga.  App.  360,  77  S.  E.  205 347,  348 


TABLE  OF  CASES  CITED  xxxv 

State,  Aaron  v 121,  336,  339 

State,  Abbott  v 87,  410,  458 

State  v.  Advertiser  Co.  (Ala.),  77  So.  758 164 

State,  Advertiser  Co.  v 162 

State  v.  Agalos  (N.  H.),  107  Atl.  314 86,  212,  355 

State  v.  Alderman  (la.),  174  N.  W.  30 120,  326 

State,  Alexander  v 113,  260,  313,  327,  415 

State  v.  Allen,  161  N.  C.  226,  75  S.  E.  1082 275 

State,  Allison  v 252,  288,  356,  398,  403,  407 

State  v.  Allston,  107  S.  C.  485,  93  S.  E.  177 122 

State,  Amonett  v 306,  360,  361,  375,  456,  460 

State,  Anderson  v 114,  364 

State,  Armington  &  Sons  v 228,  459 

State  v.  Arsenault,  106  Me.  192,  76  Atl.  410 238,  241,  283 

State  v.  Atwood,  166  N.  C.  438,  81  S.  E.  318 317 

State,  Autrey  v 322,  325,  359,  440,  446 

State  v.  Avicolli  (Vt.),  102  Atl.  1037,  1038 397 

State,  Baca  v 277,  452 

State  v.  Bachtold  (Wash.),  180  Pac.  896 244,  445,  449 

State.  Bacot  v 377 

State  v.  Bailey,  168  N.  C.  168,  83  S.  E.  711 343,  347 

State,  Bain  v 114 

State  v.  Baldwin  (N.  C.),  100  S.  E.  345 289,  329,  392,  445 

State  v.  Baldwin  (N.  C.),  100  S.  E.  348 286,  290,  291,  378 

State  v.  Baltimore,  etc.,  R.  Co.,  78  W.  Va.  526,  89  S.  E.  288,  L. 

R.  A.  1916F,  1001 173,  179,  184 

State.  Banks  v 133 

State,  Barbour  v 131,  299,  300,  309,  329 

State,  Barksdale  v 325 

State,  Barnhill  v 454 

State  v.  Barr,  84  Vt.  38,  77  Atl.  914,  48  L.  R.  A.,  N.  S.,  302n 

85,  364,  379 

State  z:  Bartow,  95  Wash.  480,  164  Pac.  227 241,  249 

State  z:  Bass  Pub.  Co.,  104  Me.  288,  71  Atl.  894,  20  L.  R.  A.,  N. 

S.,  495  ..• 96,  164 

State  v.  Bates,  168  Mo.  App.  365,  127  S.  W.  79 239 

State,  Battle  v 139 

State,  Baumgartner  v 115,  302,  354,  363,  462 

State,  Beaty  v 387 

State  v.  Becker,  20  la.  438 265 

State,  Beiser  v 137 

State,  Belchner  v 445 

State,  Benton  v 343 

State  v.  Berger,  97  Kan.  366,  155  Pac.  40 240 

State,  Berry  v 371,  41C,  417 

State  v.  Billingsley,  99  Wash.  445,  169  Pac.  845 306,  378. 

389,     408,  426 


xxxvi  TABLE  OF  CASES  CITED 

State,    Billingsley    v 382 

State,  Bird  v 240,  306,  367,  368,  369,  441,  457 

State,    Bishop   v 328,    3S3,  384 

State,    Black    v 197 

State,    Blackburn   v 102,  110 

State  v.  Blackwell,  103  Wash.  337,  174  Pac.  646 334 

State  v.  Blauntic,  170  N.  C.  749,  87  S.  E.  101 203,  419,  421 

State  v.  Brodecker,  11  Wash.  417,  39  Pac.  645 265 

State,    Bondurant    v 378 

State,    Bonner    v 396 

State,    Boos    v : 108 

State  v.  Bossingham,  35  S.  D.  355,  152  N.  W.  285 174 

State  v.  Boynton,   155  N.   C.  456,  71   S.   E.  341 304,   383,  403 

State,    Braden    v 325 

State  v.   Bradford    (Mo.  App.),   195   S.  W.   523 239 

State  v.  Bradley,  109  S.  C.  411,  96  S.  E.  142 132,  342,  343,  344,  425 

State,    Bragg   v 109,    419,  455 

State,    Brantley    v 114 

State,    Brandy    v 413 

State,    Braxton    v 373,  443 

State,    Bridgeforth    v 112,  389 

State,   Brigman   v 391,   419,  458 

State,  Brittain  v 271 

State,    Brocks    v 205 

State,    Brokhaus    v 306 

State,   Brooks  v 293,   299,   301,   302,   303,  413 

State,    Browder    v 453 

State  v.   Brown(Mo.  App.),  198  S.  W.  177 266 

State,  Brown  v 74,  82,  91,  132,  140,  273 

State  v.  Buchman,  2  Bbyce's  (25  Del.),  591,  83  Atl.  938 146 

State,    Bundy  v 273,   329,  407 

State  v.  Bunker  (Mo.  App.),  206  S.  W.  399 334,  342 

State  v.  Burchfield,  149  N.  C.  537,  63  S.  E.  80,  16  Ann.  Cas.  555. 

116 

State,   Burgan  v 224,   230,   279,  329 

State,    Burton   v 125,  126 

State  v.  Busick,  90   Ore.  466,   177   Pac.   64 115,   268,   403,  404 

State  v.  Butler   (la.),  173  N.  W.  239.. 292,  319,  323,  336,  382,  449,  453 

State  v.   Butler    (N.   C.),  98   S.    E.   821 401,  402 

State,    Butler   v 341 

State,   Caffee  v .' 334,   336,  337 

State,    Cage    v 431,  440 

State,    Cagle    v 458 

State,    Calhoun    v 388 

State,    Campbell    v 334,  429 

State,   Canales   v 375,  434 


TABLE  OF  CASES  CITED  xxxvii 

State,     Cannington    v 456 

State  v.   Cardwell,   166  N.  C.   309,  81   S.   E.  628 104,  287,  362 

State,    Carl    v 413 

State,    Carleton    v 345 

State,    Carmichael    v 447 

State,    Carrico    v 452 

State,  Carson  v 93,  366,  459 

State,    Carswell   v 84,  435 

State,    Carter   v 264,  438 

State,    Carty    v 280 

State,    Cashin    v 243 

State,    Cassidy    v 281 

State   v.   Cathey,  170  N.   C.  794,  87   S.   E.   532 208,  401 

State  v.  Centennial  Brewing  Co.  (Mont.),  179  Pac.  296,  297.. 80, 

83,  87,  93 

State  v.   Ceresa    (Vt.),   102  Atl.   1040 397,  398 

State  v.   Certain   Appurtenances   Used  in    Sale   of   Intoxicating 

Liquors,   46   Okla.   538,    149    Pac.   130 219 

State   v.    Certain    Intoxicating    Liquors    (Utah),   172    Pac.    1050, 

1052     71,  136 

State  v.  Certain  Intoxicating  Liquors   (Utah),  177  Pac.  235.. 217,  228 

State  v.  Chamberlain,  180  la.   685,   163  N.  W.  428,  429 147 

State,    Chance    v 296,  3O5 

State,    Cheek   v 210,    400,    428,  429 

State  v.  Chicago,  etc.,  R.  Co.   (Mo.  App.),  191  S.  W.   1051 174 

State  v.  Chicco,  82   S.  C.  122,  63   S.   E.  306 183 

State,     Chronister    v 250,  288 

State  v.  Cipra,  92  Kan.  591,  141  Pac.  1133 172 

State  v.  Clancy,  97  Wash.  410,  166   Pac.  778 235 

State  v.   Clark,   124   La.  965,   50  So.  811 345.  414 

State   v.  Clark    (Mo.  App.),  203   S.  W.  627 455 

State,    Clark   v 415,    419,  421 

State,  Claunch  v 66,    93 

State  v.  Clifford,  88  N.  J.  L.  458,  97  Atl.  57 324 

State,    Coates   v 419,   420,  461 

State,    Coats   v 85,    329,  355 

State,    Cochran    v 99 

State,    Cockran    v 237 

State,    Cohen    v 281 

State,   Cole  v 245,  254,  387,   393,  396 

State,    Coleman    v 103,   210,  211 

State,    Collotta    v 175 

State  v.  Compton,  94  Kan.  642,  146  Pac.  1161 312 

State,    Condit   v 113,   309,  434 

State,    Conley  v 265,    336,    382,  449 

State   v.   Conner    (Wash.),    182    Pac.    602 445 


xxxviii  TABLE  OF  CASES  CITED 

State,    Cook    v 106 

State  v.  Cool,  66  W.   Va.  86,   66   S.    E.   740 414 

State  v.  Cooper  (N.  J.  Sup.),  107  Atl.  149 257 

State,  Cooper  v 90,  140,  151,  346,  351,  354 

State,    Corley    v 255 

State.    Correlis    v 70 

State  v.  Country  Club  (Tex.  Civ.  App.),  173  S.  W.  570 137 

State,    Country    Club    v 134,  180 

State  v.  Coverdale  1  Boyce's  (24  Del.)  555,  77  Atl.  754.. 92,  345, 

346,  380 

State,    Cowart    v 347,    348,  441 

State,    Cowley    v 296 

State  v.   Cox,   91   Ore.   518,   197   Pac.   575 139,   354,   355 

State,    Cox    v 226 

State,    Craig   v 387,  393 

State,    Crapp    v 221 

State,    Cravey    v 389 

State,    Crawley    v 110 

State  v.  Crider,  180  Mo.  App.  77,  168,  S.  W.  315 268 

State,    Cripe    v 88,  344 

State  v.   Cumberland,   112  Me.  196,  91  Atl.  911 179 

State,    Cunningham   v 252 

State,   Cureton  v 62,  131 

State,  Curry  v 245,  358,   403,  405 

State  v.  Curtwright,  134  Mo.  App.  588,  114  S.  W.  1146 266 

State,    Dalton    v 325 

State,  D'Amico  v 102,  383,  384 

State,    Dantzler    v 105 

State,    Darneal    v 102 

State  v.  Davis   (Okla.),  178  Pac.  676 218 

State  v.  Davis   (Utah),  184  Pac.  161 220,  226,  227 

State  v.  Davis,  68  W.  Va.  142,  69  S.  E.  639,  Ann.  Cas.   1912A, 

996,   32    L.    R.   A.,    N.    S.,   501 148,    149,    150,    151,  352 

State  v.  Davis,  68  W.  Va.  184,  69  S.  E.  644 261,  265 

State  v.  Davis,  77  W.  Va.  271,  87  S.  E.  262,  L.  R.  A.  1917C,  639. 

62,  163 

State,   Davis   v 133,   253,   440,  445 

State,    Deal   v 102,    135,  444 

State,  Dean  v 113,  264,  365,   383,  384,  461 

State  v.  Decker,  75  W.  Va.  565,  84  S.  E.  376 165 

State,    Dees   v 91,    252,  333 

State,    Dent    v 344 

State  v.  Denton,  154  N.  C.  641,  70  S.  E.  830 110,  111,  455 

State  v.  Denton,  164  N.  C.  530,  80  S.  E.  401 63,  202 

State  v.  Dereiko   (Wash.),   182   Pac.   597 271,   308,  376 

State  v.  Dick  &  Bros.  Quincy  Brewing  Co.,  270  Mo.  100,  192  S. 

W.    1022,   L.    R.   A.    1917D,    1023m 176 


TABLE  OF  CASES  CITED  xxxix 

State,  Dinkins  v &5 

State  v.  District  Court,  176  la.  178,  157  N.  W.  737 197,  198 

State  v.  District  Court,  24  Mont.  33,  60  Pac.  493 197 

State  v.  District  Court,  54  Mont.  580,  172  Pac.  539 200 

State,  Donaldson  v 92,  365,  441 

State  v.  Donovan  (Wash.),  183  Pac.  127 72 

State,  Donovan  v 256 

State  v.  Doremus,  137  La.  266,  68  So.  605 209 

State,  Doss  v 458 

State,  Doublin  v '. 318 

State  v.  Donicet,  136  La.  180,  66  So.  772 246,  357 

State,  Dozier  v 318 

State  V.  Duff,  81  W.  Va.  407,  94  S.  E.  498 247,  267,  268,  282 

State.  Dunbar  v 319,  320 

State,  Duncan  v 229 

State  v.  Dunn,  158  N.  C.  654,  74  S.  E.  359 267 

State,  Dunn  v 301,  341,  419,  421,  422 

State  v.  Durien,  70  Kan.  1,  78  Pac.  152,  15  L.  R.  A.,  N.  S.,  908.  .  62 

State,  Duren  v 314 

State  v.  Durr,  69  W.  Va.  251,  71  S.  E.  767,  46  L.  R.  A.,  N.  S., 

764  417,  436 

State,  Earp  v .245,  265 

State,  Echols  v 255,  278 

State  v.  Eden,  92  Wash.  1,  158  Pac.  967,  159  Pac.  700 207 

State,  Edenfield  v 461 

State,  Edmunds  v 373 

State,  Edwards  v 98,  125 

State,  Elder  v 66 

State  v.  Elliott,  138  La.  457,  70  So.  473,  474 280 

State,  Elliott  v 108,  309,  403,  404 

State,  Ellis  v ..296,  b«>5 

State  v.  Elmore  (Mo.  App.),  189  S.  W.  612 102 

State  v.  Emonds  (Wash.),  182  Pac.  584 145,  376 

State,  Engman  v 367 

State,  Estes  v 84 

State  v.  Fabbri,  98  Wash.  207,  167  Pac.  133,  L.  R.  A.  1918A, 

416  62,  67,  99,  101 

State,  Fahnestock  v 253 

State,  Fair  v 391 

State  v.  Fargo  Bottling  Works  Co.,  19  N.  D.  396,  124  N.  W. 

387,  26  L.  R.  A.,  N.  S-,  872n 62 

State,  Farmer  v 347,  348 

State  v.  Ferris,  142  La.  198,  76  So.  608 117,  423 

State,  Files  v 103,  327,  328,  352,  370,  462 

State,  Finch  v 106,  264,  440 

State,  Findley  v 321 

State  v.  Finlayson  (N.  D.),  170  N.  W.  910 196,  197 


xl  TABLE  OF  CASES  CITED 

State,  First  Nat.  Bank  v 218 

State,  Fisher  v 265,  311,  313,  349,  424 

State,  Fitch  v 60,  61,  248 

State,  Fletcher  v 347,  424 

State,  Flood  v 349,  433 

State  v.  Fogg,  107  Me.  177,  77  Atl.  714 183,  187,  275 

State,  Ford  v 57 

State  v.  Ford  Touring  Car  No.  1,  440,  316,  117  Me.  232,  103  Atl. 

364  222,  256 

State  v.  Fortin,  106  Me.  382,  76  Atl.  896,  21  Ann.  Cas.  454 369 

State  v.  Fountain  (la.),  168  N.  W.  285 280,  342,  343,  365,  393,  399 

State  V.  Francis,  157  N.  C.  612,  72  S.  E.  1041 259,  320,  358 

State  v.  Frazee  (W.  Va.),  97  S.  E.  604 464 

State  v.  Freeman,  162  N.  C.  594,  77  S.  E.  780 259,  283,  287,  318 

State,  Freeman  v 445 

State,  Gable  v 108 

State,  Gales  v 372,  412 

State,  Gardner  v 119 

State,  Garfield  v 118 

State,  Gary  v 396 

State,  Gaskins  v 343,  347 

State  v.  Gastonguay  (Me.),  105  Atl.  402 176,  353,  448 

State  v.  Geist  (Mo.  App.),  195  S.  W.  1050 309 

State  v.  Gens,  107  S.  C.  448,  93  S.  E.  139 122,  291,  328 

State  v.  George,  136  La.  906,  67  So.  953 66 

State,  George  v 347,  348 

State  v.  Germain  (N.  D.),  170  N.  W.  121 60,  67 

State  v.  Gesell,  137  Minn.  41,  162  N.  W.  683 403,  422 

State,  Gilliland  v 138,  435 

State,  Gillispie  v 339 

State,  Girder  v 294 

State  v.  Glass,  99  Kan.  159,  160  Pac.  1145 182,  190 

State,  Glover  v 261 

State,  Golpi  v 124,  294 

State,  Goodman  v 432 

State  v.  Gordon,  32  N.  D.  31,  155  N.  W.  59,  Ann.  Cas.  1918A, 

442  419,  423,  424,  428 

State  v.  Gordon  (Wash.),  163  Pac.  772 153,  211 

State  v .  Gosell,  137  Minn.  41,  162  N.  W.  683 115 

State,  Grace  v 119,  267 

State,  Gramlich  v 251,  307 

State,  Grant  v 343,  347 

State  v.  Great  Northern  R.  Co.,  98  Wash.  197,  167  Pac.  103. 

126,  130,  221,  222 

State  v.  Great  Northern  R.  Co.,  101  Wash.  464,  172  Pac.  546..  152 

State  v.  Green,  127  La.  830,  54  So.  44 259,  260 


TABLE  OF  CASES  CITED  xli 

State,    Gresham    v 262 

State,   Griffin  v 206,  281,  333 

State  v.  Gross,  76  N.  H.  304,  82  Atl.  533 103,  110,  367 

State,    Grusin    v 368 

State,    Guarreno    v 371 

State,  Gulf,  etc.,  R.  Co.  v 64,  68,  69,  70,  72,  97,  179 

State  v.  Gummer,  22  Wis.  411 265 

State,  Haar  v 409,  442 

State,    Hale   v 451,  481 

State,   Hall   v 88,   137,   140,   257,   263,   264,   280,  410 

State,    Hamilton    v. 113 

State  v.   Hampton,   106  S.  C.  275,  91   S.    E.   314 315,  323 

State  v.  Haney,  151  Mo.  App.  251,  132  S.  W.  55 266 

State,   Harris  v 118,  244,  255,  284',  295,  323 

State  v.   Harrison,   159   la.   67,  140    N.   W.  223 191 

State,   Harrison  v 304,   3'58,  461 

State,  Harwell  v 355,  363,  383,  384,  411,  462 

State  v.  Hastings,  2  Boyce  (Del.)    482,  81  Atl.  403 108,  138, 

140,  147,   351,  379 

State,    Hawkins    v 256 

State,   Hayes  v 419 

State,    Haymond    v 256 

State,   Haynes  v 119 

State  v.  Hays,  38  S.  D.  546,  162  N.  W.  311 106,  350,  416,  442 

State,   Head  v 315 

State,   Heier  v 321 

State  v.   Heldt,   41   Tex.  220 265 

State,    Hemmelwiet    v 321 

State  v.   Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A.  1917B, 

962n 62,  80,  81,  82,  83,  93,  94,  345 

State,    Hendrix   v 133,   296,    299,   300,  445 

State,  Hendry  v 306 

State,    Henley    v 368,    369,  373 

State  v.  Henry,  74  W.  Va.  72,  81  S.  E.  569 293,  325,  365 

State,  Herman  v 397,  398 

State,    Herring   v 254,   287,    417,    423,    424,  427 

State,  Hicks  v 72,  73,  374 

State,    Higgins    v 381 

State,    High   v 382,    445,  451 

State,    Hightower    v 118 

State,   Hill  v Ill,   137,   304,  404 

State,    Kinsman    v 289 

State,   Hodge  v 417,  423 

State  v.  Hoffman   (Ore.),  166  Pac.  765 169,  434 

State,   Holden  v , 442 

State  v.   Holland,   99   Wash.  645,   170   Pac.   332 147,  408 


xlii  TABLE  OF  CASES  CITED 

State  v.    Hollingsworth,   134   La.   554,   64    So.   409 365 

State,    Hollingsworth   v 441 

State,    Hollingworth    v 454 

State,   Holmes  v 297,  366,  383,  402,   397,  458 

State,   Holt  v 238,  243,  354,  422 

State  v.  Horner,   174  N.  C.  788,  94  S.   E.  291 100,   101,  301,   439 

State,    Horton    v 104 

State,    Howard    v 84,    86,    206 

State,  Howze  v 371 

State,  Huff  v 336 

State,    Huggins    v 434 

State  v.   Hughes   (Ala.),  82  So.   104 228 

State,    Hughes    v 358 

State,    Humphrey   v 140 

State,    In    re 180,   207 

State  v.   Intoxicating  Liquors,   110   Me.  260,  85  Atl.  1060 210 

State  v.  Intoxicating  Liquors,  112  Me.   138,  91   Atl.   175 224,   231 

State  v.  Intoxicating  Liquors,  112   Me.  220,  91  Atl.  947 231 

State  v.  Intoxicating  Liquors,  112  Me.  393,  92  Atl.  326 230 

State  v.   Intoxicating  Liquor,   82  Vt.   287,   73   Atl.   586 216,  225 

State  v.  Intoxicating  Liquors  and  Vessels   (Me.),  106  Atl.  711. 

85,    86,    139 

State  v.  Intoxicating  Liquors  and  Vessels  (Me.),  106  Atl.  771..       355 

State,  Jackson  v 64,  71,  131,  259,  347,  357,  383,  386,  423,  443 

State  v.  Jamison   (Mo.  App.),  199  S.  W.  713 104 

State  v.  Jaques,  68    Mo.   260 265,   266 

State   v.  Jarvis   (la.),    165   N.   W.   61 167,   168,   334,   335,   353,   447 

State  v.  Jenkins,  64  N.  H.  375,  10  Atl.  699 66 

State,  Jenkins  v 205,  276,  438 

State  v.  Jenson   (Utah),  184  Pac.  179 215,  226 

State  v.  John,  129  La.  208,  55  So.  766 250,  2-64,  268,  274 

State,    Johns    v 447 

State,  Johnson  Z/..61,  116,  119,  251,  292,  310,  347,  411,  413,  415,  446  450 

State  v.  Jones,  115   Me.  200,  98  Atl.   659 357 

State  v.  Jones  (Mo.),  209  S.  W.  876,  877 176 

State  v.  Jones,  174  N.  C.  709,  95  S.  E.  376 100 

State,  Jones  v 118,  206,  208,  247,  252,  347,  451 

State  v.  Jones-Hansen-Cadillac  Co.   (Neb.),   172   N.   W.   3'6..96, 

170,    218,    220 

State  v.  Julius,  29  S.  D.  638,  137  N.  W.  '590 150,  274,  360 

State  v.  Kapicsky,  105  Me.  127,  73  Atl.  830,  23  L.  'R.  A.,  N.  S., 

737 168,    178 

State  v.   Kasiska,  27   Idaho  548,   150  Pac.   17 180 

States.    Kelly,   89   S.    E.   303,   71    S.    E.   987 271,   287,   359 

State,    Kelley   v 244,    259,    263 

State,  Kemp  v 294,  310 


TABLE  OF  CASES  CITED  xliii 

State,    Kendrick   v Ill 

State,    Kerney    v 372 

State  v.  Kiefer,  172  la.  306,  151  N.  W.  440 176,  449 

State  v.   Killeen    (N.   H.),   107   Atl.  601 85,   355,   426 

State   v.    Killian    (N.    C.),    101    S.    E.    109 100,    322 

State,    Killough    v 261 

State,   Kindrix  v 462 

State  v.   King,  92   Kan.  669,   141   Pac.  247 273 

State,   Kirk  v 278,  381.  382,   399 

State,   Kirkpatrick  v 164 

State     v.    Kirkwood     Leisure     Hours    Social,     etc.,     Club    (Mo. 

App.),    187    S.    W.    819 174 

State  v.   Klein   (la.),  174  N.  W.  481 86,  179,  355 

State  v.   Knapp,   177   la.  278,   158   N.  W.  517 169 

State    v.    Knapp,    178    la.    25,    158    N.    W.    515 186,    189,    192,    193 

State,   Knowles  v 413 

State  -v.  Koerner  (Wash.),   175  Pac.  175,  176 265 

State,   Kunsberg  v 66,   333 

State  v.  Kurent  (Kan.),  181  Fac.  603 .' 62 

State  v.   Kurent   (Kan.),  184  Pac.  721 199,  200,  285,  375 

State  v.   Labrecque,  78  N.   H.   182,  97   Atl.   747 66,   81 

State,    Lacey   v 351 

State  v.  Ladd,  15  Mo.  430 266 

State,   Ladson   v 246 

State  v.  Lafargue,  141  La.  936,  75  So.  998 403,  404 

State,   Lambie  v 65 

State,    Land   v 72,    206 

State,    Landers    v 85 

State  v.  Laymon  (S.  D.),  167  N.  iW.  402 252,  403,  406 

State  v.  Leary,  75  N.  H.  459,  76  Atl.  192,  44   L.  R.  A.,  N.  S., 

457n     188 

State,    Lebrecht    v 220 

State  v.  Lee,  164  N.  C.  533,  80  S.  E.  405 203 

State,    Lee   v 326 

State  v.  Legendre,  89  Vt.  526,  96  Atl.  9 109,  386 

State   v.   Leonard    (Mo.   App.),   190  S.    W.   957 266 

State  v.   Lesh,  27   N.   D.   165,  145   N.  W.  829 149,   261,   283 

State,   Lester  v 263 

State,   Lewis   v 84,   269,    446 

State  v.   Lieber,   143   La.   158,   78   So.  431 121,   286 

State   v.   Li    Fieri    (Del.),   102  Atl.   77 254,   269 

State,    Lindsay  v 388    450 

State,    Lippman    -v 222 

State,    Liquor   Transp.    Cases   v 120,    123,    124,    130,   258,   277 

State  v.  Little,  171   N.  C.  805,  88   S.   E.  723 362 

State,   Littlefield  v Ill,   320 


xliv  TABLE  OF  CASES  CITED 

State,    Littleton    v 372,  4O2 

State,    Lochinar   v 103 

State,    Loeb    v 103 

State,   Longmire  v 64,  248 

State,    Looper  v 434 

State,   Lopez   v 109 

State,  Loudermilk  v 318,  368,  369 

State,   Louisville,   etc.,   R.   Co.  v 66 

State  v.  Lovell,  47  Vt.  493 62 

State,    Lowery   v 99,    296,    408,  429 

State  v.  Lunsford,  150  N.  C.   862,  64  S.   E.  765 274 

State,  Lupo  v 106 

State,    Luther   v 66 

State  v.  Lynch,  5  Boyce's  (28  Del.)  569,  96  Atl.  32 93 

State,   Lynn  v 456 

State  v.  Lyon,   83   S.   C.   509,   65   S.   E.   730 172,   173,  181 

State  v.  Lyons  (Mo.  App.),  215  S.  W.  484 402 

State,    McAdams   v 247,    251,  252 

State,    McAlester   v 370,    443,  450 

State,    McAllister  v 143,   276,    352,    389,  429 

State  v.  McCasky,  97  Wash.  401,  166  Pac.  1163 149,   382,  386 

State   v.    McCowen    (Mo.    App.),   189    S.    W.    618 351,  362 

State,    McCruen   v 386 

State  v.  Macek,  104  Kan.  742,  180  Pac.  985 62,  257,  272,  285 

State,    McElwee   v 360 

State,    M|cGee   v 298 

State,    McGovern   v  347 

State  v.  McGuire,  139  La.  88,  71  So.  239 356 

State,   Mclntosh  v 371 

State,   Mack  v 343.  347 

State  v.  McKone,  31   N.  D.  547,  154  N.  W.  256 419,  420 

State,  McNeal  v 123,  240,  258 

State,    McNeil    v 246 

State  v.  Maguire,  31   Idaho  24,  169   Pac.  175 167,  187,  425 

State,   Maisel  v 326,  336 

State,    Malick   v 316,  346 

State,   Malone  v 311 

State  v.  Manship,  174  N.   C.  798,  94  S.   E.  2 392 

State,    Maples  v 215,  226 

State  v.  Marastoni,  85  Ore.  37,  165  Pac.  1177 67,  99,  101 

State,  Marks  v 65,  80,  81,  84,  85,  86,  87,  91,  92,  94,  263,  3'55,  413 

State  v.  Markuson,  5  N.  D.  147,  64  N.  W.  934 197 

State  v.  Markuson,  7  N.  D.  155,  73  N.  W.  82 197 

State  v.  Maroun,   133  La.   1083',   63   So.   593 241 

State  v.   Marquardt   (La.),   169   N.   W.   338 202 

State  v.  Marshall,  100  Miss.  626,  56  So.  729,  Ann.  Cas.  1914A, 

434 172,   173,   182,  185 


TABLE  OF  CASES  CITED  xlv 

State  v.  Martin,  92  Wash.  3"66,  159  Pac.  88 145,  151,  232 

State,  Martin  v 396,  409 

State,  Martoni  v 376,  383,  385,  460 

State  v.  Matarazza  (N.  J.  Sup.),  107  Atl.  266 275 

State  v.  Mathews,  115  Me.  84,  97  Atl.  824 305 

State  v.  Mattox  Cigar,  etc.,  Co.  (Ala.),  77  So.  756 66,  91 

State,  Maynes  v 123',  240 

State,  Medlock  v 106,  397,  398,  401 

State  v.  Meyers,  132  Minn.  4,  155  N.  W.  766 292,  302,  311 

State  v.  Midland  Aerie  No.  412,  Fraternal  Order  of  Eagles, 

98  Kan.  793,  161  Pac.  903 179 

State  v.  Miller,  92  Kan.  994,  142  Pac.  979,  L.  R.  A.  1917F,  238, 

Ann.  Cas.  1916B,  365 83,  84,  437 

State,  Mills  v 383',  385 

State,  Milwaukee  Beer  Co.  v 207 

State  v.  Missouri  Athletic  Club  (Mo.),  170  S.  W.  904,  905 97 

State,  Mitchell  v 112 

State,  Montgomery  v 377 

State,  Monyean  v Ill 

State,  Moody  v 115 

State  v.  Moore,  166  N.  C.  284,  81  S.  E.  294 249 

State,  Moore  v 383,  384 

State,  Morris  v 445 

State,  Morse  v 416 

State  v.  Morton,  38  S.  D.  504,  162  N.  W.  155 145,  146,  147.  352 

State,  Morton  v 352 

State,  Moses  v 359 

State,  Mosley  v 367 

State,  Moss  v 287 

State  v.  Mostella,  159  N.  C.  459,  74  S.  E.  578 356,  416 

State,  Motlow  v t>2 

State  v.  Mountain  City  Club,  136  Tenn.  (9  Thompson)  102,  188 

S.  W.  579 178 

State  v.  Mull  (N.  C.),  101  S.  E.  89 98 

State  v.  Muller,  80  Wash.  368,  141  Pac.  910 240 

State,  Mulling  v 347 

State,  Mullins  v 433 

State,  Mundy  v 293,  300,  308 

State,  Munn  v 122 

State,  Murray  v 291,  327,  417,  450 

State,  Myers  v 347 

State,  Neal  v. 317 

State,  Nelson  v 288,  353,  354,  460 

State  v.  Newlin  (Ore.),  165  Pac.  225 364 

State  v.  Nocolay  (Mo.  App.),  184  S.  W.  1183 86,  147 

State,  Nixon  v 307,  435 

State,  Norred  v 325 


xlvi  TABLE  OF  CASES  CITED 

State,  Nowell  v 132,  444 

State,  O'Brien  v 281 

State  i:  O'Connell,  99  Me.  61,  58  Atl.  59 66 

State  v.  Ogleston  (N.  C.),  98  b.  E.  537 363,  437 

State  v.  O'Kelley,  258  Mo.  345,  167  S.  W.  980,  52  L.  R.  A.,  N. 

S.,  860n 151,  153 

State,  Oldacre  v 284,  319 

State,  One  Cadillac  Automobile  v 215,  220 

State,  One  Moon  Automobile  v 223 

State  v.  One  Packard  Automobile  (Okla.),  172  Pac.  66 220 

State,  O'Rear  v 13 1 

State  v.  O'Toole  (Me.),  108  Atl.  99 387,  388,  405 

State  v.  Otto,  38  S.  D.  353,  161  N.  W.  340 275,  455 

State,  Overton  v 378,  381 

State,  Page  v 256,  388 

State,  Pappenburg  v 432,  450 

State,  Park  v 239 

State,  Parker  v 133 

State,  Parks  v,.\ 444 

State,  Pate  v 445 

State,  Patterson  v ..88,  99,  301,  381,  387,  b91,  394,  414 

State,  Payne  v 456 

State,  Peebles  v 286,  356 

State  v.  Peloquin,  106  Me.  358,  76  Atl.  888 261  262 

State,  Pennell  v 66 

State  v.  Pensacola,  etc.,  S.  S.  Co.  (Ala.),  75  So.  892 230,  231 

State,  Perdue  v 290 

State  v.  Perello,  102  Kan.  695,  171  Pac.  6oO 249 

State,  Perro  v 222 

State  v.  Peters,  142  La.  249,  76  So.  702 400 

State,  Peyton  v 295,  317 

State,  Phelps  v 460 

State  v.  Phillips,  109  Miss.  22,  67  So.  651 93 

State,  Phillipps  v 387 

State  v.  Pierce,  88  Vt.  277,  92  Atl.  218 397,  398 

State,  Pines  v 256,  264,  273 

State,  Pitts  v 457 

State,  Plair  v 317 

State  v.  Pope,  79  S.  C.  87,  60  S.  E.  234 120,  450 

State,  Pope  v 114,  269,  456 

State,  Porras  v 386 

State,  Price  v 316 

State,  Procter  v 272 

State,  Proctor  v 235 

State  v.  Provencher,  135  Minn.  214,  160  N.  W.  673,  Ann.  Cas. 

1917E,    598 116 


TABLE  OF  CASES  CITED  xlvii 

State,  Pruett  v 440 

State,  Quinn  v 3«8,  396,  450 

State  v.  Radke,  139  Minn.  276,  166  N.  W.  346 305 

State,  Ragan  v 362,  400 

State  v.  Ragghianti,  129  Tenn.  (2  Thompson)  560,  167  S.  W. 

689 180,  181,  198 

State  v.  Randall,  170  N.  C.  757,  87  S.  E.  227,  Ann.  Cas.  1918A, 

438 133',  373 

State  v.  Raph  (la.),  168  N.  W.  259 191,  233 

State,  Rash  v 107,  204,  250,  335,  363 

State  v.  Raub  (Wash.),  173  Pac.  1094 431 

State  v.  Raven,  91  S.  C.  265,  74  S.  E.  500 99,  100,  270 

State  v.  Rawlings,  232  Mo.  544,  134  S.  W.  530 334,  342 

State,  Ray  v 255,  320,  361 

State,  Reddick  v ; 370,  396,  403,  406 

State,  Regadanz  v 253 

State  f.  Reisen,  165  Wis.  258,  161  N.  W.  747,  748 172 

State,  Ren  v 450 

State  v.  Reno  Brewing  Co.  (Neb.),  178  Pac.  902 97,  177 

State,  Reynolds  v  296,  ai6,  432 

State  v.  Richardson  (Mo.  App.),  182  S.  W.  782 342 

State,  Rigrish  v 256 

State,  Rivard  v 122 

State,  Rabbins  v 258 

State,  Roberts  v 90,  96,  103',  205 

State,  Robertson  v 126,  297 

State,  Robinson  <v 295,  317,  358 

State,  Roden  v 289,  .360,  390 

State  v.  Rogers,  80  W.  Va.  680,  93  S.  E.  757  168 

State,  Rogers  v 244,  276,.  288,  3'42,  343,  389 

State,  Rose  v 165,  166,  286 

State,  Rosenburg  v 271,  307,  403 

State  v.  Ross  (N.  D.),  170  N.  W.  121  163 

State  v.  Ross,  70  W.  Va.  549,  74  S.  E.  670,  39  L.  R.  A.,  N.  S., 

814n 152,  377 

State,  Ross  v 451 

State,  Rothschild  v 135,  292 

State,  Rupard  v 122 

State  v.  Russel,  164  N.  C.  482,  80  S.  E.  66,  33-8 

State  v.  Ryan,  1  Boyce's  (Del.)  23,  75  Atl.  869  115,  344,  363 

State,  Saddler  v 131,  371 

State,  Salvador  v 84,  293,  412 

State,  Sanders  v 118,  363,  375 

State,  Sapp  v 298,  368,  3«0 

State,  Sangfield  v 321 

State  v.  Sarlin  (Ind),  123  N.  E.  800 134,  251,  253 


xlviii  TABLE  OP  CASES  CITED 

State,    Sasser    v 400 

State,    Schave    v 258 

State  v.  Schmidt,  92   Kan.  457,    140   Pac.   843 270,  432 

State  v.  Schoppe,  113'  Me.  10,  92  Atl.  867   223 

State,    Schulmeyer    v 258,  432 

State  v.  Schweiter,  27   Kan.  499    265 

State,    Scott   v 103,    113,    168,    242,    296,    347,    348,    371 

State  v.  Seaboard  Air-Line  R.  Co.,  169  N.  C.  295,  81  S.  E.  283. 

62,    154,    464,   465 

State,  Seaboard  Air  Line  Railway  v 207,  426 

State  v.  Seaborn,  166  N.  C.  373,  81  S.  E.  687 308 

Stater.  Lee,  177  La.  316,  158  N.  W.  667 169,  315 

State,    Sellers    v „ 333,336 

State,    Sewell    v 44> 

State,  Shaneyfelt  v 92,  367,  436 

State,  Sharpe  v 220 

State,   Shaw  v 347 

State  v.  Shelton  (la.),  169  N.  W.  351 354 

State,    Shepherd  v 305,    375 

State  v.  Silka,  179  la.  663,  161  N.  W.  703 187,  188,  189 

State,    Sills    v 245 

State,    Silva   v 433 

State  v.   Simmerson   (N.  C.),  98   S.   E.  784 134 

State  v.   Simons   (N.  C),   100  S.   E  239 134,   377,   378,   379 

State,    Simpson    v 109 

State  v.  Sixo,  77  W.  Va.  243,  87   S.  E.  267 333 

State,    Shermetta    v 105 

State,    Staten    v 442 

State,    Slaughter    v 347 

State  v.   Small,  80   Me.   452,   14   Atl.   942 357 

State  v.  Small,  82  S.  C.  93,  63  S.  E.  4 166 

State  v.   Smith,  96   Kan.  320,   150  Pac.  640 237 

State  v.  Smith,  139  La.  442,  71  So.  734 264 

State  v.  Smith   (Mo.  App.),  201   S.  W.  942 318 

State  v.  Smith,  89  N.  J.  L.  52,  97  Atl.  780 267,  323,   326 

State,   Smith  t/..84,   126,   245,   322,   3'43,   347,    371,   392,    409,   410, 

431,  440,  446 

State,  Snead  v 344,  436 

State   v.    Snell,    99    Wash.    195,    169    Pac.    320 151 

State,    Snider  v 88,   398 

State  v.   Snyder   (la.),   171    N.   W.   8 312 

State  v.   Soucie,   109    Me.   251,   83   Atl.   700 210 

State  v.  Southern  Exp.  Co.   (Ala.),  75  So.  343. 160,  203,  228 

State,  Southern  Exp.  Co.  z>..121,  122,  155,  156,  160,  185,  252,  294,  452 

State   v.    Spain,   29    Mo.    415 266 

State,    Spigener   v 241     287,    370,    403,    405,    428 


TABLE  OF  CASES  CITED  xlix 

State  v.  Spirituous  Liquors,  75  N.  H.  273,  73  Atl.  169 223 

State,   Springer  v 264,  419,   421,  422 

State  f.   Stanley,  38  N.   D.  311,  164  N.  W.   702 107,  257,  4031 

State   v.    Stanley,    134    La.    131,    63    So.    850 3«9 

State.     Stapleton    v 290 

State,    Starr  v 347,  348 

Slate,    State    Nat.    Bank   v 219,  223 

State   r.    Stickney,    111    Me.    590,   90   Atl.    705 112 

State,    Stocks    v 329 

State,     Stokes    v 340 

State,    Stoner    v 87 

State  v.  Stoughton  Club,  163  Wis.  362,  158  N.  W.  93 180,  182 

State  v.  Stout,  112  Ind.  245,  13  N.  E.  715 253 

State,  Stout  v 203,  299,  339,  401 

State,    Stover    v 117 

Slate,    Stramler  v 397,  39S 

State,    Strickland    v 101 

State,   Strozier  v 263,  36J 

State,  Stubblefield  v 445 

State,   Sturgeon  v 248,  282 

State  f.   Sullivan,  97   Wash.  639,  166   Pac.  1123 102,  243,  292,  415 

State,    Sweatt    v 403,  404 

State  v.  Synder  (la),  171  N.  W.  8 455 

State   v.    Taggart    (la.),    172    N.    W.    299 285,  324 

State,   Taylor  v 349,  385 

State,    Telico    v 445 

State,    Terretto    v 69,    70,  453 

State  v.  Terry,   128   La.   680,   55   So.   15 149 

State,    Thames    v 370 

State,    Tharpe    v 285 

State,   Thayer    r 279 

State,    Theatrical    Club    v *>G 

State   :•.   Theodore   (Mo.),   191   S.   W.   422 334,  343 

State,   Thomas  v     100,  311,  392,  415,  417,  447 

State,   Thompson  v 84 

State,    Thurman    v 3S8 

State  v.  Tincher,   81   W.   Va.   441,   94   S.    E.  503 60,   333,   334, 

339,    3*1,  399 

State,    Tooke    v 206 

State,  Toole  v 209.  230 

State  v.  Tooley,   107   S.   C.   408,   93   S.   E.   132 202,  203 

State,    Touchstone   v 343,  347 

State,    Trentham    v 393 

State  r.   Trione,   97    Kan.   365,   155    Pac.    29 416,  436 

State,    Troutner   v 140,  280 

State  f.  Trowbridge,  112  Me.  16,  90  Atl.  494 243 

— d 


1  TABLE  OF  CASES  CITED 

State   v.    Truba,   88    Vt.   557,   93    Atl.   293 274,  35ft 

State  v.  Tullos,   135  La.  640,   65   So.   870 145 

State  v.  Turner,   171  N.   C.  803,  88  S   E.   523 392 

State,   Turner  v 119,  285,  346 

State  v.   Tygart   (la.),   172    N.   W.  299 324 

State  v.  Tygarts  Valley  Brewing  Co.,  71   W.  Va.   38,   75   S.   E. 

149    350 

State,  Untreinor  v 371 

State,    Vance    v 255,    403,  404 

State  v.  Van   Vleet   (Minn.),   165   N.   W.  962 403,  408 

State,    Van    Winkle    v 150 

State,    Voves    v 283 

State  v.  Wainscott,  169  N.  C.  379,  85  S.  E.  380 249,  303 

State,    Waldemar   v 290 

State,  Wales  v  350,  437,  442 

State  v.  Walker,  221  Mo.  511,  120  S.  W.  1198 96 

State,    Walker  v 237,  306 

State   v.   Walters,   178   la.   1108,   160   N.   W.   821,  822.. 368,    369, 

452,     459,  462 

State,  Walters  v 108 

State,  Ward  v 443 

State,    Warrick   v 287,    288,  413 

State  v.   Watkins,   164   N.   C.   425,    79    S.   W.   619 267 

State,  Watkins  v 123,  12 1 

State  v.  Watson,  92  Kan.  983,  142  Pac.  956 235,  416 

State,  Watson  v 3«2,  419,  427 

State  v.  Waxman  (N.  J.  Supp.),  107  Atl.  150 98,  296,  349 

State  v.  Webb,  36  N.  D.  235,  162  N.  W.  358 168,  271,  357 

State,  Webb  v 284,  419,  421,  460 

State,   Weimberg  v 84,  387 

State   v.   Whalen    (Wash.),    183'  Pac.   130 374 

State  v  .Wheeler,  38  N.   D.  456,  165  N.  W.  574,  575 177 

State,  White  v 101,  227,  347,  435,  458 

State,   Whitley,  v 276,   279,   350,  451 

State,    Whitten    v 105 

State  v.  Wilbur  (Ore.),  166  Pac.  51 283,  284,  307 

State,    Wilburn   v 84,  361 

State,   Wilcox  v 290 

State,    Wiley   v 72 

State  v.  Wilkerson,   164   N.   C.  431,  at  p.  435,   79   S.   E.  888,  at 

p.    890 338,  344 

State,   Wilkins  v 243,  376 

State  v.  Willey  (Del.),  108  Atl.  79 j.,2 

State  v.  Williams,  172  N.  C.  973,  90  S.  E.  905 110 

State,   Williams  v 112,  264,   303,   316,  434,  438 

State,    Willingham    v 340 


TABLE  OF  CASES  CITED  li 

State  v.  Wills,  73  W.  Va.  446,  80  S.  E.  783 146 

State,   Wilson   v 113,    118,   310,    336,    350 

State,    Windom    v 366 

State,    Winfrey  v 125,   247,   251,    267,    295,   361 

States.  Winner,  153  N.  C.  602,  69  S.  E.  9 110,  403,  406 

State,    Wolf   v 347 

State,    Womack   v 306 

State,  Woods  v 114,  362 

State,  Woodward  v 183,  412 

State  v.  Woolfolk   (Mo.),   190  S.  W.  877 184 

State,  Wooten  v 383,   385 

State,    Wozniak    v 271 

State,  Wright  v 135,  136,  413,  444 

State,    Wynn    v 348 

State,    Yaughan    v 235 

State   v.  Yocum   (Mo.   App.),  205   S.   W.   232 106,   297 

State  v.  York,  74  N.  H.  125,  127,  65  Atl.  685,  13  Ann.  Cas.  116.         6*> 

State,    Young    v 253 

State  v.  Zagone,  13'5  La.  550,  65  So.  737 365 

State  v.   Zehnder,   182   Mo.   App.  161,   168   S.   W.   661 105 

State   Nat.   Bank  v.   State    (Okla.),  172   Pac.  1073 219,  223 

Stickney,   State  v 112 

Stocks  v.   State,   19   Ga.  App.  607,  91   S.  E.  944 329 

Stoevenor  &  Co.,  Fisher  v 183 

Stokes  v.   State,  5  Ala.  App.  159,  59   So.   310 340 

Stone,    Commonwealth    v 107 

Stoner  v.  State,  5  Ga.  App.  716,  63  S.  E.  602 81 

Stoughton  Club,   State  v 180,   182 

Stout  v.  State,  15  Ala.  App.  260,  72   So.  762 203,  299,  339,  401 

Stout,   State  v 253 

Stover  v.  State,  19  Ariz.  308,  170  Pac.  788 117 

Stramler  v.  State,  15  Ala.  App.  600,  74  So.  727 397,  398 

Stratford  v.  Seattle  Brewing,  etc.,  Co.,  94  Wash.  125,  162  Pac. 

31,  L.   R.  A.  1917C,  931n 60 

Stratton,   Mead  v 97 

Strickland  v.  State,  9  Ga.  App.  201,  70  S.  E.  990 101 

Strickler,    People    v 93 

Strozier  v.   State,   127  Ark.   543,   192   S.  W.  884 263,  360 

Stubblefield   v.    State    (Okla.    Cr.    App.),    180    Pac.    252 445 

Stubblefield  v.  State   (Okla.   Cr.  App.),   180  Pac.   561 445 

Sturgeon  v.  State,  17  Ariz.  513,  154  Pac.  1050,  L.  R.  A.  1917B, 

1230    248,    260 

Sue    Chung    Kee,    People   v 397 

Sullivan,    State  v 102,   243,   292,   415 

Sweatt  v.   State,   153   Ala.   70,  45   So.   588 403,   404 

Synder,  State  v 312,  455 


lii  TABLE  OF  CASES  CITED 


Taggart,   State  v 285,    324 

Tay,    Commonwealth    v 447 

Taylor  v.  State,  5  Ga.  App.  237,  62  S.  E.  1048 387 

Taylor  v.  State,  14  Ga.  App.  114  80  S.   E.  292 349 

Taylor  v.  Wildman    (la.),   145   N.  W.   449,   451 60 

Telico  v.  State,  13  Okla.  Cr.  App.  608,  166  Pac.  76 445 

Terretto  v.  State  (Tex.  Cr.  App.),  215  S.  W.  329 69,  70,  453 

Territory  v.   Robertson,   19   Okla.   149,  92   Pac.   144 175 

Terry,    State    v 149 

Texas,    Rippey    v 143 

Thames   v.   State,    10  Ala.   210,    64    So.   648 370 

Tharpe  v.  State    (Ga.  App.),   100  S.   E.   754 285 

Thatcher  v.  Reno  Brewing  Co.   (Nev.),  178  Pac.  902..  ..61,  80,  81,  82 

Thayer,    Commonwealth    v 441 

Thayer  v.  State    (Okla.   Cr.   App.),   183   Pac.   931 279 

Theatrical  Club  v.  State  (Ala.),  74  So.  969 66 

Theodore,    State   v 334,    342 

Thomas,    Skinner    v 215,    226 

Thomas  v.  State,  12  Ala.  App.  293,  68  So.  549 311 

Thomas  v.  State,  13  Ala.  App.  246,  68  So.  799 392,  415,  417,  447 

Thomas  v.   State    (Ga.   App.),   100   S.    E.   760 100 

Thomasville,    Campbell    v 87 

Thompkins  v.  State,  2  Ga.  App.  639,  58  S.  E.  1111 84 

Thompson  v.  Simmons  &  Co.,   139   Ga.  845,  78   S.   E.  419 186 

Thornton  v.  Skelton   (Ga.),  99  S.  E.  299 192,  223,  352,  353 

Thurman   v.   State,   14   Ga.   App.   543,   81    S.    E.   796.  .  . 388 

Tierman,    Giozza    v 61 

Tincher,   State  v 60,   333,   334,   341,   399 

Tomlin   v.    Commonwealth    (Va.),    97    S.    E.    305 314 

Tooke  v.  State,  4  Ga.  App.  495,  61  S.  E.  917,  918 206 

Toole  v.  State,  170  Ala.  41,  54  So.  195 209,  230 

Tooley,  State  v 202,  203 

Touchstone  v.  State,  17  Ga.  App.  333,  86  S.  E.  744 343,  347 

Trentham  v.  State,  22  Ga.  App.  134,  95  S.  E.  538 393 

Tribe  of  the  Sioux,  Shideler  v 134,  189 

Trione,  State  v 416,   437 

Troutner  v.  State,  17  Ariz.  506,  154  Pac.  1048,  L.  R.  A.  1916D, 

262 140,    280 

Trowbridge,  State  v 243 

Truba,  State  v 274,   356 

True  v.  Hunter,  174  la.  442,  156  N.  W.  363 334,  342 

Tullos,   State  v 148 

Turner  v.  State,  14  Ala.  App.  29,  70  So.  971 346 

Turner  v.  State,  13  Ark.  48,  196  S.  W.  477 285 

Turner  v.  State.  18  Ga.  App.  393,  89  S.  E.  538 119 


TABLE  OF  CASES  CITED  liii 

Turner,    State   v 392 

Turner  v.  United  States   (C.  C.  A.),  259  Fed.  103 324 

Tuscaloosa,    Lane    v 398 

Tuscaloosa,    Merriwether    v 343 

Tuttle  v.   Hutchison,   173'  la.   503,   151   N.   W.  845,  851 197 

Tygart,   State   v 324 

Tygarts   Valley    Brewing   Co.,    State    v 350 

U 

Union  Nat.  Bank  v.  Finley,  180  Ind.  470,  475,  103  N.  E.  110..  432 

United  States  v.  Baumgartner  (D.  C.),  259  Fed.  722 75,  85,  89,  270 

United  States,  Berryman  v 129,  453 

United  States,  Biandi  v 399,  400 

United  States,  Bishop  v 127,  362,  380,  451 

United  States,  Blackman  v 323 

United  States,  Bradley  v 451 

United  States,  Bullard  v 297,  305,  315 

United  States,  Butterfield  v 65 

United  States  r.  Cerecedo  Hermanos  Y.  Compania,  209  U.  S. 

337,  339,  2-8  Sup.  Ct.  532,  52  L.  Ed.  821 90 

United  States,  Cihok  v 414 

United  States  v.  Collins  (D.  C.),  254  Fed.  869 99,  126,  128,  129 

United  States,  De  Moss  v 67,  381 

United  States,  Dosset  v 278,  294,  300 

United  States  v.  Ellis  (D.  C.),  51  Fed.  808 80 

United  States,  Faraone  v 409 

United  States,  Fetters  v 282,  366 

United  States,  Ford  v 378 

United  States,  Goldstein  v 282 

United  States  v.  Gudger,  249  U.  S.  373,  39  Sup.  Ct.  323,  63  L. 

Ed 129 

United  States,  Guignard  v 436,  439 

United  States  v.  Hill,  248  U.  S.  420,  39  S.  Ct.  143 68,  129 

United  States  v.  Hillsdale  Distillery  Co.  (D.  C.),  242  Fed.  536 

159,  268 

United  States  v.  James  (D.  C.),  256  Fed.  102 64,  67,  68 

United  States,  Jones  v 127 

United  States,  Komada  &  Co.  v 90 

United  States,  Laughter  v 121,  128,  432 

United  States  v.  Luther  (D.  C.),  260  Fed.  579 124,  250,  259 

United  States,  McKnight  v 157 

United  States,  Malcolm  v 258,  378 

United  States,  Mayer  v 246 

United  States  v.  Minery  (D.  C.),  259  Fed.  707 75,  76 

United  States  v.  One  Buick  Automobile  (D.  C.),  255  Fed.  7&3.  217 
United  States  v.  One  Cadillac  Eight  Automobile  (D.  C.).  255 

Fed.    173...  211 


liv  TABLE  OF  CASES  CITED 

United  States  v.  One  Ford  Automobile  (D.  C),  259  Fed.  894.       216 
United  States  v.  One  Ford  Five  Passenger  Automobile  (D.  C.), 

259    Fed.    645 220 

United  States  v.  One  Seven  Passenger  Paige  Car   (D.  C.),  259 

Fed.    641 227 

United    States,    Preyer  v 129 

United  States  v.  Ranier  Brewing  Co.   (D.  C.),  259  Fed.  350 89 

United  States  v.  Ranier  Brewing  Co.  (D.  C.),  259  Fed.  359  75 

United   States,    Robilio   v 400,    432,   453 

United    States,    Sarlls    v 80 

United  States  v.  Schmauder   (D.  C.),  258  Fed.  251.. 75,  76,  82, 

88,   89,  90,  270,  282,  346 

United    States,    Schmidt    Brewing   Co.   v 159 

United    States,    Scoggins   v 350,    441,    442 

United   States,   Scroggins  v 102 

United  States,  Shawnee  Nat.  Bank  v 217,  219,  226,  227.  233 

United   States  v.  Simpson    (D.   C.),  257   Fed.  860 122,   249 

United   States,    Smiling   v 438 

United  States  v.   Standard  Brewery   (D.   C.),  260   Fed.  486 270 

United    States,    Turner    v 324 

United    States,    Villers    v 454 

United    States,    Weems   v 450 

United    States,    Williams    v 330 

United  States,  Young  v 249,  357 

Untreinor  v.  State,  146  Ala.  133,   41   So.   170 371 

V 

Van   Bug  Fish   Co.  v.   Herstrom    (Wash.),   177  Pac.   334,   335..       219 

Vance  v.  State,  80  Tex.  Cr.  App.  177,  190  S.  W.  176 255,  403 

Van  Deman,  etc.,  Co.,  Rast  v 61 

Van    Pelt,    Marasso    v 69 

Van   Vleet,   State   v....: 403,    408 

Van  Winkle  v.  State,  4  Boyce's   (27  Del.)   578,  91  Atl.  385 150 

Villers  v.  United  States  (C.   C.  A.),  255   Fed.  75 454 

Voves  v.  States,  161   C.  C.  A.  227,  249  Fed.  191 283 

W 

Wachal  v.  Davis,  145  N.  W.  867 148 

Wainscott,    State    v 249,    302 

Waldemar  v.  State,  21   Ga.  App.  504,  94  S.  E.  624,  625 290 

Wales  v.  State  (Tex.  Cr.  App.),  212  S.  W.  503 350.  437.  442 

Walker  v.  State   (Ala.  App.),  81  So.   179 237,  366 

Walker,    State    v 96 

Wallace,    Emsweller   v 212,    272 

Walters  v.  State,  174  Ind.  545,  92  N.   E.  537 108 

Walters,   State  v 368,   369,   452,   459,   462 

Ward  v.   State    (Okla.    Cr.   App.),   175   Pac.   60 443 


TABLE  OF  CASES  CITED  Iv 

Warrick  v.   State,   8   Ala.   App.   391,  62   So.   342 287,   288,   413 

Washington,    Butler    v 431 

Watkins  v.  State,   13   Okla.  Cr.  App.  507,  165   Pac.  621 123,  124 

Watkins,    State   v 264 

Watkins    v.  Wilkerson,  141  Ga.    163,  80  S.  E.  71S,    Ann.   Cas. 

1915C,    1124 191 

Watson  v.  State,  8  Ala.  App.  414,  62  So.  997 382,  419 

Watson  v.  State,   11  Ala.  App.   199,  65   So.   689 427 

Watson,    State    v 235,    416 

Waxman,  State  v 98,  296,  349 

Waycross,    Highsmith    v 347 

Webb  v.   State    (Ark.),   212   S.  W.   567 460 

Webb  v.  State,  13   Ga.  App.  733,  80  S.   E.   14 284,  419,  421 

Webb,   State   v 168,    270,    357 

Weems  v.  United  States   (C.  C.  A.),  257   Fed.  57 450 

Weinberg  v.  State,  81  Tex.  Cr.  App.  306,  194  S.  W.  116 84,  387 

Wells  v.  District  Court,  126  la.  340,  102  N.  W.  106 197 

Wells   Fargo   &  Co.   Exp.,   McAdams  v 128 

Westbrook,    Ex    parte 125,    128 

Westbrook,    Mack  v 60,    61,    215,   221,   223 

Western   Maryland   R.   Co.,   Clark   Distilling  Co.  z>...60,  61,  65, 

68,  464,  465 

Whalen,    State    v 374 

Wheeler,   People  v 60,   204 

Wheeler,    State    v 177 

White,    Commonwealth    v 118 

White,  Le  Clair  v 333 

White  v.  State,  93  Ga.  47,  19   S.   E.  49 347,  458 

White  v.  State,  18   Ga.  App.  214,  89  S.   E.  175 101 

White  v.  State  (Ga.  App.),  98  S.  E.  171 227 

White  v.  State,  88   Neb.   177,   129   N.   W.   259 435 

Whitley  v.  State    (Ark.),  215   S.   W.   331 276 

Whitley   v.    State    (Ark.),   215   S.   W.   703 279,   451 

Whitley  v.  State,  14  Ga.  App.  577,  81  S.   E.  797 350 

Whitlock,    Monumental    Brewing    Co 104 

Whitten  v.  State,  75  Tex.   Cr.  App.  225,  170  S.  W.  718 105 

Whittle,    Southern    Exp.    Co.   v 65,    334 

Wilbur,    State    v 284,    307 

Wilburn  v.  State,  8  Ga.  App.  28,  68  S.  E.  460 84,  361 

Wilcox  v.  State,  19  Ga.  App.  83,  90  S.   E.   1032 290 

Wildman,    Taylor    v 60 

Wiley  v.   State    (Ala.),   81   So.   343 72 

Wilkerson  v.  Commonwealth,  122  Va.  920,  95   S.   E.  388 244 

Wilkerson,    State    v 338,    344 

Wilkerson,    Watkins    v 191 

Wilkins   v.    State    (Fla.),    78    So.   523 243,    376 

Willey,    State    v 132 


Ivi  TABLE  OP  CASES  CITED 

Williams  v.   State,  129  Ark.   344,   196  S.  W.   125 112,  434 

Williams   v.   State,   89    Ga.   438,   15    S.    E.   552 264 

Williams   v.   State    (Ga.   App.),  99   S.    E.   711 303,    316 

Williams  v.   State    (Ga.  App.),   100   S.   E.   763 438 

Williams,    State    v 110 

Williams  v.  United  States   (C.  C.  A.),  254  Fed.  48 330 

Willingham  v.  State,  11  Ala.  App.  205,  65  So.  847 340 

Wills,    State    v 146 

Wilson  v.  Commonwealth,  181  Ky.  370,  205  S.  W.  39-1.. 342,  419,  447 
Wilson  v.  New,  243  U.   S.  332,  346,  37  Sup.  Ct.  298,  61   L.   Ed. 

755,    L,.    R.    A.    1917E,    938 65 

Wilson  v.   State,   114   Ark.   574,   169   S.   W.   795 113 

Wilson  v.  State,  130  Ark.  204,  196  S.  W.  921 118,  310,  350 

Wilson  v.  State,  11   Okla.  Cr.  App.  510,  148  Pac.  823 336 

Windom  v.  State,  19  Ga.  App.  452,  91  S.   E.  911 366 

Winfrey  v.  State,  133  Ark.  357,  202  S.  W.  23..  125,  247,  251,  267, 

295,   361 

Winner,    State   v 110,    403,    406 

Wittman,    Ah    Sin    v 61 

Wolf  v.   State,  16   Ga.   App.  250,   85   S.   E.   86 347 

Womack  v.  State,  130  Okla.  Cr.  App.  323,  164  Pac.  477 306 

Wood,    Commonwealth    v 357 

Woods  v..  Commonwealth   171   Ky.  200,   188  S.  W.   350 432 

Woods  v.   State,   114  Ark.   391,   170   S.  W.   79 114,   362 

Woodward,    Ex    parte i 65 

Woodward  v.  State,   173  Ala.  7,  55   So.  506 183 

Woodward  v.  State,  5  Ala.  App.  202,  59  So.  688 412 

Woolfolk,    State   v 184 

Wooten  v.  State,  17  Ga.  App.  333,  86  S.  E.  740 383,  385 

Wozniak  v.  State  (Neb.),  174  N.  W.  298 271 

Wright   v.    State,    4   Ala.   App.    150,   58    So.   803 413 

Wright  v.  State,  14  Ga.  App.  185,  80  S.  E.  544 135,   136,  444 

Wynn  v.  State,  11   Ga.  App.  182,  65  So.  687 348 

Y 

Yaughan   v.   State,   148   Ga.   517,   97   S.    E.   540 235 

Yocum,   State  v 106,  297 

York,    State    v 66 

Young,   Adams    Exp.    Co.   v 330 

Young,    Cowart   v 224 

Young  v.   State    (Ind.),   124   N.   E.   679 253 

Young  v.  United  States,  162  C.  C.  A.  133,  249  Fed.  935,  936.. 249,  357 

Z 

Zagone,    State   v 365 

Zamata  v.    Browning    (Utah),   170   Pac.    1057 69 

Zehnder,    State    v 105 

Zwissig,   Ex  parte 206 


NATIONAL  PROHIBITION  LAW 


ANALYSIS 


Manufacture 
Sale 

Transporta- 
tion 

Intoxicating 
Liquors 


Concurrent 
Power 


Ratification 


Constitutional- 
ity 

Treated  p. 
56-74 


CONSTITUTIONAL  AMENDMENT. 
ARTICLE  18. 

SECTION  1.  After  one  year  from  the 
ratification  of  this  article  the  manufac- 
ture, sale  or  transportation  of  intoxicat- 
ing liquors  within,  the  importation  there- 
of into,  or  the  exportation  thereof  from 
the  United  States  and  all  territory  subject 
to  the  jurisdiction  thereof  for  beverage 
purposes  is  hereby  prohibited. 

SEC.  2.  The  Congress  and  the  several 
States  shall  have  concurrent  power  to  en- 
force this  article  by  appropriate  legisla- 
tion. 

SEC.  3.  This  article  shall  be  inoperative 
unless  it  shall  have  been  ratified  as  an 
amendment  to  the  Constitution  by  the  leg- 
islatures of  the  several  States,  as  provided 
in  the  Constitution,  within  seven  years 
from  the  date  of  the  submission  hereof  to 
the  States  by  the  Congress. 

Ratification  was  proclaimed  by  the 
State  Department,  January  16,  1919. 


NATIONAL  PROHIBITION  ACT 


Title  to  Act 


This  title, 
relating 
solely    to 
War  Prohibi- 
tion, is 
superseded 
by  title  II 
since  January 
16,   1920 


See  p.  75 


LEGISLATIVE  ENFOECEMENT. 

AN  ACT 

To  prohibit  intoxicating  beverages,  and 
to  regulate  the  manufacture,  produc- 
tion, use,  and  sale  of  high-proof  spir- 
its for  other  than  beverage  purposes, 
and  to  insure  an  ample  supply  of  al- 
cohol and  promote  its  use  in  scientific 
research  and  in  the  development  of 
fuel,  dye,  and  other  lawful  industries. 

Be  it  enacted  by  the  Senate  and  House 
of  Representatives  of  the  United  States 
of  America  in  Congress  assembled,  That 
the  short  title  of  this  Act  shall  be  the 
"National  Prohibition  Act." 

TITLE  I. 

TO    PROVIDE   FOR   THE   ENFORCEMENT    OF    WAR 
PROHIBITION. 

The  term  " War  Prohibition  Act"  used 
in  this  Act  shall  mean  the  provisions  of 
any  Act  or  Acts  prohibiting  the  sale  and 
manufacture  of  intoxicating  liquors  until 
the  conclusion  of  the  present  war  and 
thereafter  until  the  termination  of  de- 
mobilization, the  date  of  which  shall  be 
determined  and  proclaimed  by  the  Presi- 
dent of  the  United  States.  The  words 


NATIONAL  PROHIBITION  ACT  3 

"beer,  wine,  or  other  intoxicating  malt 
or  vinous  liquors"  in  the  War  Prohibi- 
tion Act  shall  be  hereafter  construed  to 
mean  any  beverages  which  contain  one- 
half  of  1  per  centum  or  more  of  alcohol 
by  volume. 

SEC.  2.  That  the  Commissioner  of  In- 
ternal Revenue,  his  assistants,  agents, 
and  inspectors,  shall  investigate  and  re- 
port violations  of  the  War  Prohibition 
Act  to  the  United  States  attorney  for  the 
district  in  which  committed,  who  shall 
be  charged  with  the  duty  of  prosecuting, 
subject  to  the  direction  of  the  Attorney 
General,  the  offenders  as  in  the  case  of 
other  offenses  against  laws  of  the  United 
States;  and  such  Commissioner  of  Inter- 
nal Revenue,  his  assistants,  agents,  and 
inspectors  may  swear  out  warrants  be- 
fore United  States  commissioners  or  other 
officers  or  courts  authorized  to  issue  the 
same  for  the  apprehension  of  such  of- 
fenders, and  may,  subject  to  the  control 
of  the  said  Unted  States  attorney,  con- 
duct the  prosecution  at  the  committing 
trial  for  the  purpose  of  having  the  of- 
fenders held  for  the  action  of  a  grand 
jury. 

SEC.  3.  Any  room,  house,  building,  boat, 
vehicle,  structure,  or  place  of  any  kind 
where  intoxicating  liquor  is  sold,  manu- 
factured, kept  for  sale,  or  bartered  in  vi- 


NATIONAL  PROHIBITION  ACT 

olation  of  the  War  Prohibition  Act,  and 
all  intoxicating  liquor  and  all  property 
kept  and  used  in  maintaining  such  a 
place,  is  hereby  declared  to  be  a  public 
and  common  nuisance,  and  any  person 
who  maintains  or  assists  in  maintaining 
such  public  and  common  nuisance  shall 
be  guilty  of  a  misdemeanor,  and  upon 
conviction  thereof  shall  be  fined  not  less 
than  $100  nor  more  than  $1,000,  or  be  im- 
prisoned for  not  less  than  thirty  days  or 
more  than  one  year,  or  both.  If  a  person 
has  knowledge  that  his  property  is  occu- 
pied or  used  in  violation  of  the  provisions 
of  the  War  Prohibition  Act  and  suffers 
the  same  to  be  so  used,  such  property 
shall  be  subject  to  a  lien  for  and  may  be 
sold  to  pay  all  fines  and  costs  assessed 
against  the  occupant  of  such  building  or 
property  for  any  violation  of  the  War 
Prohibition  Act  occurring  after  the  pas- 
sage hereof,  which  said  lien  shall  attach 
from  the  time  of  the  filing  of  notice  of  the 
commencement  of  the  suit  in  the  office 
where  the  records  of  the  transfer  of  real 
estate  are  kept;  and  any  such  lien  may  be 
established  and  enforced  by  legal  action 
instituted  for  that  purpose  in  any  court 
having  jurisdiction.  Any  violation  of 
this  title  upon  any  leased  premises  by  the 
lessee  or  occupant  thereof  shall,  at  the 
option  of  the  lessor,  work  a  forfeiture  of 
the  lease. 


NATIONAL  PROHIBITION  ACT  5 

SEC.  4.  The  United  States  attorney  for 
the  district  where  such  nuisance  as  is  de- 
fined in  this  Act  exists,  or  any  officer  des- 
ignated by  him  or  the  Attorney  General 
of  the  United  States,  may  prosecute  a  suit 
in  equity  in  the  name  of  the  United  States 
to  abate  and  enjoin  the  same.  Actions  in 
equity  to  enjoin  and  abate  such  nuisance 
may  be  brought  in  any  court  having  ju- 
risdiction to  hear  and  determine  equity 
cases.  The  jurisdiction  of  the  courts  of 
the  United  States  under  this  section  shall 
be  concurrent  with  that  of  the  courts  of 
the  several  States. 

If  it  be  made  to  appear  by  affidavit,  or 
other  evidence  under  oath,  to  the  satisfac- 
tion of  the  court,  or  judge  in  vacation, 
that  the  nuisance  complained  of  exists,  a 
temporary  writ  of  injunction  shall  forth- 
with issue  restraining  the  defendant  or 
defendants  from  conducting  or  permitting 
the  continuance  of  such  nuisance  until 
the  conclusion  of  the  trial.  Where  a  tem- 
porary injunction  is  prayed  for,  the  court 
may  issue  an  order  restraining  the  de- 
fendants and  all  other  persons  from  re- 
moving or  in  any  way  interfering  with 
the  liquor  or  fixtures,  or  other  things 
used  in  connection  with  the  violation 
constituting  the  nuisance.  No  bond  shall 
be  required  as  a  condition  for  making 
any  order  or  issuing  any  writ  of  injunc- 
tion under  this  Act.  If  the  court  shall 


NATIONAL  PROHIBITION  ACT 

find  the  property  involved  was  being  un- 
lawfully used  as  aforesaid  at  or  about  the 
time  alleged  in  the  petition,  the  court 
shall  order  that  no  liquors  shall  be  manu- 
factured, sold,  bartered,  or  stored  in  such 
room,  house,  building,  boat,  vehicle, 
structure,  or  places  of  any  kind,  for  a  pe- 
riod of  not  exceeding  one  year,  or  during 
the  war  and  the  period  of  demobilization. 
Whenever  an  action  to  enjoin  a  nuisance 
shall  have  been  brought  pursuant  to  the 
provisions  of  this  Act,  if  the  owner, 
lessee,  tenant,  or  occupant  appears  and 
pays  all  costs  of  the  proceedings  and  files 
a  bond,  with  sureties  to  be  approved  by 
the  clerk  of  the  court  in  which  the  action 
is  brought,  in  the  liquidated  sum  of  not 
less  than  $500  nor  more  than  $1,000,  con- 
ditioned that  he  will  immediately  abate 
said  nuisance  and  prevent  the  same  from 
being  established  or  kept  therein  a  period 
of  one  year  thereafter,  or  during  the  war 
and  period  of  demobilization,  the  court, 
or  in  vacation  the  judge,  may,  if  satisfied 
of  his  good  faith,  direct  by  appropriate 
order  that  the  property,  if  already  closed 
or  held  under  the  order  of  abatement,  be 
delivered  to  said  owner,  and  said  order 
of  abatement  canceled,  so  far  as  the  same 
may  relate  to  said  property;  or  if  said 
bond  be  given  and  costs  therein  paid  be- 
fore judgment  on  an  order  of  abatement, 
the  action  shall  be  thereby  abated  as  to 


NATIONAL  PROHIBITION  ACT  7 

said  room,  house,  building,  boat,  vehicle, 
structure,  or  place  only.  The  release  of 
the  property  under  the  provisions  of  this 
section  shall  not  release  it  from  any  judg- 
ment, lien,  penalty,  or  liability  to  which 
it  may  be  subject  by  law. 

In  the  case  of  the  violation  of  any  in- 
junction, temporary  or  permanent,  granted 
pursuant  to  the  provisions  of  this  title, 
the  court,  or  in  vacation  a  judge  thereof, 
may  summarily  try  and  punish  the  de- 
fendant. The  proceedings  for  punish- 
ment for  contempt  shall  be  commenced 
by  filing  with  the  clerk  of  the  court  from 
which  such  injunction  issued  information 
under  oath  setting  out  the  alleged  facts 
constituting  the  violation,  whereupon  the 
court  or  judge  shall  forthwith  cause  a 
warrant  to  issue  under  which  the  defend- 
ant shall  be  arrested.  The  trial  may  be 
had  upon  affidavits,  or  either  party  may 
demand  the  production  and  oral  exami- 
nation of  the  witnesses.  Any  person 
found  guilty  of  contempt  under  the  pro- 
visions of  this  section  shall  be  punished 
by  a  fine  of  not  less  than  $500  nor  more 
than  $1,000,  or  by  imprisonment  of  not 
less  than  thirty  days  nor  more  than  twelve 
months,  or  by  both  fine  and  imprison- 
ment. 

SEC.  5.  The  Commissioner  of  Internal 
Revenue,  his  assistants,  agents,  and  in- 


NATIONAL  PROHIBITION  ACT 

specters,  and  all  other  officers  of  the 
United  States  whose  duty  it  is  to  enforce 
criminal  laws,  shall  have  all  the  power 
for  the  enforcement  of  the  War  Prohibi- 
tion Act  or  any  provisions  thereof  which 
is  conferred  by  law  for  the  enforcement 
of  existing  laws  relating  to  the  manufac- 
ture or  sale  of  intoxicating  liquors  under 
the  laws  of  the  United  States. 

SEC.  6.  If  any  section  or  provision  of 
this  Act  shall  be  held  to  be  invalid,  it  is 
hereby  provided  that  all  other  provisions 
of  this  Act  which  are  not  expressly  held 
to  be  invalid  shall  continue  in  full  force 
and  effect. 

SEC.  7.  None  of  the  provisions  of  this 
Act  shall  be  construed  to  repeal  any  of 
the  provisions  of  the  "War  Prohibition 
Act,"  or  to  limit  or  annul  any  order  or 
regulation  prohibiting  the  manufacture, 
sale,  or  disposition  of  intoxicating  liq- 
uors within  certain  prescribed  zones  or 
districts,  nor  shall  the  provisions  of  this 
Act  be  construed  to  prohibit  the  use  of 
the  power  of  the  military  or  naval  au- 
thorities to  enforce  the  regulations  of  the 
President  or  Secretary  of  War  or  Navy 
issued  in  pursuance  of  law,  prohibiting 
the  manufacture,  use,  possession,  sale,  or 
other  disposition  of  intoxicating  liquors 
during  the  period  of  the  war  and  demobi- 
lization thereafter. 


NATIONAL  PROHIBITION  ACT  9 

TITLE  II. 

PROHIBITION     OF     INTOXICATING    BEVERAGES. 

SEC.  1.  When  used  in  Title  II  and  Ti- 
tle III  of  this  Act  (1)  the  word  "liquor" 
or  the  phrase  "intoxicating  liquor"  shall 
be  construed  to  include  alcohol,  brandy, 
whisky,  rum,  gin,  beer,  ale,  porter,  and 
wine,  and  in  addition  thereto  any  spirit- 
uous, vinous,  malt,  or  fermented  liquor, 
liquids,  and  compounds,  whether  medi- 
cated, proprietary,  patented,  or  not,  and 
by  whatever  name  called,  containing  one- 
half  of  1  per  centum  or  more  of  alcohol 
by  volume  which  are  fit  for  use  for  bev- 
erage purposes:  Provided,  That  the  fore- 
going definition  shall  not  extend  to  deal- 
coholized  wine  nor  to  any  beverage  or 
liquid  produced  by  the  process  by  which 
beer,  ale,  porter  or  wine  is  produced,  if  it 
contains  less  than  one-half  of  1  per  cen- 
tum of  alcohol  by  volume,  and  is  made  as 
prescribed  in  section  37  of  this  title,  and 
is  otherwise  denominated  than  as  beer, 
ale,  or  porter,  and  is  contained  and  sold 
in,  or  from,  such  sealed  and  labeled  bot- 
tles, casks,  or  containers  as  the  commis- 
sioner may  by  regulation  prescribe. 

(2)  The  word  "person"  shall  mean 
and  include  natural  persons,  associations, 
copartnerships,  and  corporations. 


10 


NATIONAL  PROHIBITION  ACT 


"Commis- 
sioner" 


'Application" 


"Permit" 


"Bond" 


'Regulation' 


Authority  of 
Commissioner 


Authority 
of  Agents 


Records 


(3)  The  word  "commissioner"  shall 
mean  Commissioner  of  Internal  Revenue. 

(*)  The  term  "application"  shall  mean 
a  formal  written  request  supported  by  a 
verified  statement  of  facts  showing  that 
the  commissioner  may  grant  the  request. 

(5)  The  term  "permit"   shall  mean  a 
formal  written  authorization  by  the  com- 
missioner setting  forth  specifically  therein 
the  things  that  are  authorized. 

(6)  The  term    "bond"  shall    mean  an 
obligation    authorized  or  required    by  or 
under    this  Act  or    any  regulation,    exe- 
cuted in  such  form  and  for  such  a  penal 
sum  as   may  be  required  by  a   court,  the 
commissioner  or  prescribed  by  regulation. 

(7)  The  term  "regulation"  shall  mean 
any   regulation    prescribed    by    the    com- 
missioner with  the  approval  of  the  Secre- 
tary of  the  Treasury  for  carrying  out  the 
provisions    of  this  Act,  and    the  commis- 
sioner is  authorized  to  make  such  regula- 
tions. 

Any  act  authorized  to  be  done  by  the 
commissioner  may  be  performed  by  any 
assistant  or  agent  designated  by  him  for 
that  purpose.  Records  required  to  be 
filed  with  the  commissioner  may  be  filed 
with  an  assistant  commissioner  or  other 
person  designated  by  the  commissioner 
to  receive  such  records. 


NATIONAL  PROHIBITION  ACT 


11 


Duties  of 
Commissioner 


Prosecution 


Warrants 


Preliminary 
Trial 


Search 
Warrants 


See  p.  95 


SEC.  2.  The  Commissioner  of  Internal 
Revenue,  his  assistants,  agents,  and  in- 
spectors shall  investigate  and  report  viola- 
tions of  this  Act  to  the  United  States  at- 
torney for  the  district  in  which  committed, 
who  is  hereby  charged  with  the  duty 
of  prosecuting  the  offenders,  subject  to 
the  direction  of  the  Attorney  General,  as 
in  the  case  of  other  offenses  against  the 
laws  of  the  United  States;  and  such  Com- 
missioner of  Internal  Revenue,  his  assist- 
ants, agents,  and  inspectors  may  swear 
out  warrants  before  United  States  com- 
missioners or  other  officers  or  courts  au- 
thorized to  issue  the  same  for  the  appre- 
hension of  such  offenders,  and  may,  sub- 
ject to  the  control  of  the  said  United 
States  attorney,  conduct  the  prosecution 
at  the  committing  trial  for  the  purpose  of 
having  the  offenders  held  for  the  action 
of  a  grand  jury.  Section  1014  of  the  Re- 
vised Statutes  of  the  United  States  is 
hereby  made  applicable  in  the  enforce- 
ment of  this  Act.  Officers  mentioned  in 
said  section  1014  are  authorized  to  issue 
search  warrants  under  the  limitations 
provided  in  Title  XI  of  the  Act  approved 
June  15,  1917  (fortieth  Statutes  at  Large, 
page  217,  et  seq.). 

SEC.  3.  No  person  shall  on  or  after  the 
date  when  the  eighteenth  amendment  to 
the  Constitution  of  the  United  States 


12 


NATIONAL  PROHIBITION  ACT 


Acts  Pro- 
hibited 


Liberal 
Construction 


Thingn 
Permitted 
In   General 


Warehouse 
Receipts 


Specific 
Articles 
Permitted 


Denatured 
Alcohol 
or  Rum 


goes  into  effect,  manufacture,  sell,  barter, 
transport,  import,  export,  deliver,  fur- 
nish, or  possess  any  intoxicating  liquor 
except  as  authorized  in  this  Act,  and  all 
the  provisions  of  this  Act  shall  be  liber- 
ally construed  to  the  end  that  the  use  of 
intoxicating  liquor  as  a  beverage  may  be 
prevented. 

Liquor  for  nonbeverage  purposes  and 
wine  for  sacramental  purposes  may  be 
manufactured,  purchased,  sold,  bartered, 
transported,  imported,  exported,  deliv- 
ered, furnished,  and  possessed,  but  only 
as  herein  provided,  and  the  commissioner 
may,  upon  application,  issue  permits 
therefor:  Provided,  That  nothing  in  this 
Act  shall  prohibit  the  purchase  and  sale 
of  warehouse  receipts  covering  distilled 
spirits  on  deposit  in  Government  bonded 
warehouses,  and  no  special  tax  liability 
shall  attach  to  the  business  of  purchasing 
and  selling  such  warehouse  receipts. 

SEC.  4.  The  articles  enumerated  in  this 
section  shall  not,  after  having  been  man- 
ufactured and  prepared  for  the  market, 
be  subject  to  the  provisions  of  this  Act  if 
they  correspond  with  the  following  de- 
scriptions and  limitations  namely: 

(a)  Denatured  alcohol  or  denatured  rum 
produced  and  used  as  provided  by  laws 
and  regulations  now  or  hereafter  in  force. 


NATIONAL  PROHIBITION  ACT 


13 


Medicinal 
Preparations 


Patent 
Medicines 


Toilet,  etc. 
Preparations 


Flavoring 
Extracts,  etc. 


Vinegar  and 
Cider 


Liquor  for 
Manufacturing 
Purposes 
Permits 


Use  of  Liquor 
for  Manufac- 
turing 


(b)  Medicinal    preparations     manufac- 
tured   in  accordance    with  formulas    pre- 
scribed   by    the    United    States    Pharma- 
copoeia,    National     Formulary,     or     the 
American    Institute  of    Homeopathy  that 
are  unfit  for  use  for  beverage  purposes. 

(c)  Patented,   patent,    and  proprietary 
medicines  that  are  unfit  for  use  for  bev- 
erage purposes. 

(d)  Toilet,    medicinal,     and    antiseptic 
preparations  and  solutions  that  are  unfit 
for  use  for  beverage  purposes. 

(e)  Flavoring  extracts  and  sirups  that 
are  unfit  for  use  as  a  beverage,  or  for  in- 
toxicating beverage  purposes. 

(f)  Vinegar  and  preserved  sweet  cider. 

A  person  who  manufactures  any  of  the 
articles  mentioned  in  this  section  may 
purchase  and  possess  liquor  for  that  pur- 
pose, but  he  shall  secure  permits  to  man- 
ufacture such  articles  and  to  purchase 
such  liquor,  give  the  bonds,  keep  the  rec- 
ords, and  make  the  reports  specified  in 
this  Act  and  as  directed  by  the  commis- 
sioner. No  such  manufacturer  shall  sell, 
use,  or  dispose  of  any  liquor  otherwise 
than  as  an  ingredient  of  the  articles  au- 
thorized to  be  manufactured  therefrom. 
No  more  alcohol  shall  be  used  in  the  man- 
ufacture of  any  extract,  sirup,  or  the  ar- 
ticles named  in  paragraphs  b,  c,  and  d  of 


14 


NATIONAL  PROHIBITION  ACT 


Sale  of 

Permitted 

Articles  for 

Beverage 

Purposes 

Unlawful 


Notice  to 
Desist 


Penalty 


this  section  which  may  be  used  for  bever- 
age purposes  than  the  quantity  necessary 
for  extraction  of  solution  of  the  elements 
contained  therein  and  for  the  preserva- 
tion of  the  article. 

Any  person  who  shall  knowingly  sell 
any  of  the  articles  mentioned  in  para- 
graphs a,  b,  c,  and  d  of  this  section  for 
beverage  purposes,  or  any  extract  or  sirup 
for  intoxicating  beverage  purposes,  or 
who  shall  sell  any  of  the  same  under  cir- 
cumstances from  which  the  seller  might 
reasonably  deduce  the  intention  of  the 
purchaser  to  use  them  for  such  purposes, 
or  shall  sell  any  beverage  containing  one- 
half  of  1  per  centum  or  more  of  alcohol 
by  volume  in  which  any  extract,  sirup,  or 
other  article  is  used  as  an  ingredient, 
shall  be  subject  to  the  penalties  provided 
in  section  29  of  this  Title.  If  the  commis- 
sioner shall  find,  after  notice  and  hearing 
as  provided  for  in  section  5  of  this  Title, 
that  any  person  has  sold  any  flavoring 
extract,  sirup,  or  beverage  in  violation  of 
this  paragraph,  he  shall  notify  such  per- 
son, and  any  known  principal  for  whom 
the  sale  was  made,  to  desist  from  selling 
such  article;  and  it  shall  thereupon  be 
unlawful  for  a  period  of  one  year  there- 
after for  any  person  so  notified  to  sell  any 
such  extract,  sirup,  or  beverage  without 
making  an  application  for,  giving  a  bond, 
and  obtaining  a  permit  so  to  do,  which 


NATIONAL  PROHIBITION  ACT 


15 


Analysis 

of    Alcoholic 

Articles 


Notice  to 
Show  Cause 


Revocation 
of  Permit 


permit  may  be  issued  upon  such  condi- 
tions as  the  commissioner  may  deem  nec- 
essary to  prevent  such  illegal  sales,  and 
in  addition  the  commissioner  shall  re- 
quire a  record  and  report  of  sales. 

SEC.  5.  "Whenever  the  commissioner  has 
reason  to  believe  that  any  article  men- 
tioned in  section  4  does  not  correspond 
with  the  descriptions  and  limitations 
therein  provided,  he  shall  cause  an  analy- 
sis of  said  article  to  be  made,  and  if,  upon 
such  analysis,  the  commissioner  shall  find 
that  said  article  does  not  so  correspond,  he 
shall  give  not  less  than  fifteen  days'  no- 
tice in  writing  to  the  person  who  is  the 
manufacturer  thereof  to  show  cause  why 
said  article  should  not  be  dealt  with  as  an 
intoxicating  liquor,  such  notice  to  be 
served  personally  or  by  registered  mail, 
as  the  commissioner  may  determine,  and 
shall  specify  the  time  when,  the  place 
where,  and  the  name  of  the  agent  or  of- 
ficial before  whom  such  person  is  re- 
quired to  appear. 

If  the  manufacturer  of  said  article  fails 
to  show  to  the  satisfaction  of  the  com- 
missioner that  the  article  corresponds  to 
the  descriptions  and  limitations  provided 
in  section  4  of  this  Title,  his  permit  to 
manufacture  and  sell  such  article  shall  be 
revoked.  The  manufacturer  may  by  ap- 
propriate proceeding  in  a  court  of  equity 


16 


NATIONAL  PROHIBITION  ACT 


Review 
by  Court 


When  Permit 
Necessary 

When  Un- 
necessary 

Physicians' 
Prescriptions 


Hospitals 


Duration 
of  Permits 


have  the  action  of  the  commissioner  re- 
viewed, and  the  court  may  affirm,  modify, 
or  reverse  the  finding  of  the  commis- 
sioner as  the  facts  and  law  of  the  case 
may  warrant,  and  during  the  pendency  of 
such  proceedings  may  restrain  the  manu- 
facture, sale,  or  other  disposition  of  such 
article. 

SEC.  6.  No  one  shall  manufacture,  sell, 
purchase,  transport,  or  prescribe  any  liq- 
uor without  first  obtaining  a  permit  from 
the  commissioner  so  to  do,  except  that  a 
person  may,  without  a  permit,  purchase 
and  use  liquor  for  medicinal  purposes 
when  prescribed  by  a  physician  as  herein 
provided,  and  except  that  any  person  who 
in  the  opinion  of  the  commissioner  is  con- 
ducting a  bona  fide  hospital  or  sanato- 
rium engaged  in  the  treatment  of  persons 
suffering  from  alcoholism,  may,  under 
such  rules,  regulations,  and  conditions  as 
the  commissioner  shall  prescribe,  pur- 
chase and  use,  in  accordance  with  the 
methods  in  use  in  such  institution,  liquor, 
to  be  administered  to  the  patients  of  such 
institution  under  the  direction  of  a  duly 
qualified  physician  employed  by  such  in- 
stitution. 

All  permits  to  manufacture,  prescribe, 
sell,  or  transport  liquor,  may  be  issued 
for  one  year,  and  shall  expire  on  the  31st 
day  of  December  next  succeeding  the  is- 


NATIONAL  PROHIBITION  ACT 


17 


suance  thereof:  Provided,  That  the  com- 
missioner may  without  formal  application 
or  new  bond  extend  any  permit  granted 
under  this  Act  or  laws  now  in  force  after 
August  31  in  any  year  to  December  31  of 
the  succeeding  year:  Provided  further, 
That  permits  to  purchase  liquor  for  the 
purpose  of  manufacturing  or  selling  as 
provided  in  this  Act  shall  not  be  in  force 
to  exceed  ninety  days  from  the  day  of  is- 
suance. A  permit  to  purchase  liquor  for 
any  other  purpose  shall  not  be  in  force  to 
exceed  thirty  days.  Permits  to  purchase 
liquor  shall  specify  the  quantity  and  kind 
to  be  purchased  and  the  purpose  for 
which  it  is  to  be  used.  No  permit  shall  be 
issued  to  any  person  who  within  one  year 
prior  to  the  application  therefor  or  issu- 
ance thereof  shall  have  violated  the  terms 
of  any  permit  issued  under  this  Title  or 
any  law  of  the  United  States  or  of  any 
State  regulating  traffic  in  liquor.  No  per- 
mit shall  be  issued  to  anyone  to  sell  liq- 
uor at  retail,  unless  the  sale  is  to  be  made 
through  a  pharmacist  designated  in  the 
permit  and  duly  licensed  under  the  laws 
of  his  State  to  compound  and  dispense 
medicine  prescribed  by  a  duly  licensed 
physician.  No  one  shall  be  given  a  permit 
to  prescribe  liquor  unless  he  is  a  physician 
duly  licensed  to  practice  medicine  and  ac- 
tively engaged  in  the  practice  of  such 
profession.  Every  permit  shall  be  in 


18 


NATIONAL  PROHIBITION  ACT 


Form  of 
Permit 


Application 
for  Permit 


Permit 
Bond 


Review  by 
Court  of  Re- 
fusal of  Per- 
mit 


Wine  for 

Sacramental 

Purposes 


writing,  dated  when  issued,  and  signed 
by  commissioner  or  his  authorized  agent. 
It  shall  give  the  name  and  address  of  the 
person  to  whom  it  is  issued  and  shall  des- 
ignate and  limit  the  acts  that  are  per- 
mitted and  the  time  when  and  place  where 
such  acts  may  be  performed.  No  permit 
shall  be  issued  until  a  verified,  written 
application  shall  have  been  made  there- 
for, setting  forth  the  qualification  of  the 
applicant  and  the  purpose  for  which  the 
liquor  is  to  be  used. 

The  commissioner  may  prescribe  the 
form  of  all  permits  and  applications  and 
the  facts  to  be  set  forth  therein.  Before 
any  permit  is  granted  the  commissioner 
may  require  a  bond  in  such  form  and 
amount  as  he  may  prescribe  to  insure 
compliance  with  the  terms  of  the  permit 
and  the  provisions  of  this  Title.  In  the 
event  of  the  refusal  by  the  commissioner 
of  any  application  for  a  permit,  the  appli- 
cant may  have  a  review  of  his  decision 
before  a  court  of  equity  in  the  manner 
provided  in  section  5  hereof. 

Nothing  in  this  title  shall  be  held  to 
apply  to  the  manufacture,  sale,  transpor- 
tation, importation,  possession,  or  distri- 
bution of  wine  for  sacramental  purposes, 
or  like  religious  rites,  except  section  6 
(save  as  the  same  requires  a  permit  to 
purchase)  and  section  10  hereof,  and  the 


NATIONAL  PROHIBITION  ACT 


19 


Permit 
Restrictions 


Ecclesiastical 
Manufacture 


See  p.  142 
Prescriptions 


provisions  of  this  Act  prescribing  penal- 
ties for  the  violation  of  either  of  said  sec- 
tions. No  person  to  whom  a  permit  may 
be  issued  to  manufacture,  transport,  im- 
port, or  sell  wines  for  sacramental  pur- 
poses or  like  religious  rites  shall  sell, 
barter,  exchange,  or  furnish  any  such  to 
any  person  not  a  rabbi,  minister  of  the 
gospel,  priest,  or  an  officer  duly  author- 
ized for  the  purpose  by  any  church  or 
congregation,  nor  to  any  such  except 
upon  an  application  duly  subscribed  by 
him,  which  application,  authenticated  as 
regulations  may  prescribe,  shall  be  filed 
and  preserved  by  the  seller.  The  head  of 
any  conference  or  diocese  or  other  eccle- 
siastical jurisdiction  may  designate  any 
rabbi,  minister,  or  priest  to  supervise  the 
manufacture  of  wine  to  be  used  for  the 
purposes  and  rites  in  this  section  men- 
tioned, and  the  person  so  designated  may, 
in  the  discretion  of  the  commissioner,  be 
granted  a  permit  to  supervise  such  manu- 
facture. 

SEC.  7.  No  one  but  a  physician  holding 
a  permit  to  prescribe  liquor  shall  issue 
any  prescription  for  liquor.  And  no 
physician  shall  prescribe  liquor  unless 
after  careful  physical  examination  of  the 
person  for  whose  use  such  prescription  is 
sought,  or  if  such  examination  is  found 
impracticable,  then  upon  the  best  infor- 


20 


NATIONAL  PROHIBITION  ACT 


Necessity 
as  Medicine 


Amount 
Permissible 


Refilling 
Prohibited 
Pharmacist 
Record 


Physician's 
Record 


Prescription 
Blanks 


mation  obtainable,  he  in  good  faith  be- 
lieves that  the  use  of  such  liquor  as  a 
medicine  by  such  person  is  necessary  and 
will  afford  relief  to  him  from  some  known 
ailment.  Not  more  than  a  pint  of  spirit- 
uous liquor  to  be  taken  internally  shall  be 
prescribed  for  use  by  the  same  person 
within  any  period  of  ten  days  and  no  pre- 
scription shall  be  filled  more  than  once. 
Any  pharmacist  filling  a  prescription  shall 
at  the  time  indorse  upon  it  over  his  own 
signature  the  word  "canceled,"  together 
with  the  date  when  the  liquor  was  deliv- 
ered, and  then  make  the  same  a  part  of 
the  record  that  he  is  required  to  keep  as 
herein  provided. 

Every  physician  who  issues  a  prescrip- 
tion for  liquor  shall  keep  a  record,  alpha- 
betically arranged  in  a  book  prescribed 
by  the  commissioner,  which  shall  show 
the  date  of  issue,  amount  prescribed,  to 
whom  issued,  the  purpose  or  ailment  for 
which  it  is  to  be  used  and  directions  for 
use,  stating  the  amount  and  frequency 
of  the  dose. 

SEC.  8.  The  commissioner  shall  cause 
to  be  printed  blanks  for  the  prescriptions 
herein  required,  and  he  shall  furnish  the 
same,  free  of  cost,  to  physicians  holding 
permits  to  prescribe.  The  prescription 
blanks  shall  be  printed  in  book  form  and 
shall  be  numbered  consecutively  from 


NATIONAL  PROHIBITION  ACT 


21 


Violation 
of  Permit 


Procedure 


one  to  one  hundred,  and  each  book  shall 
be  given  a  number,  and  the  stubs  in  each 
book  shall  carry  the  same  numbers  as  and 
be  copies  of  the  prescriptions.  The  books 
containing  such  stubs  shall  be  returned 
to  the  commissioner  when  the  prescrip- 
tion blanks  have  been  used,  or  sooner,  if 
directed  by  the  commissioner.  All  un- 
used, mutilated,  or  defaced  blanks  shall 
be  returned  with  the  book.  No  physician 
shall  prescribe  and  no  pharmacist  shall 
fill  any  prescription  for  liquor  except  on 
blanks  so  provided,  except  in  cases  of 
emergency,  in  which  event  a  record  and 
report  shall  be  made  and  kept  as  in  other 
cases. 

SEC.  9.  If  at  any  time  there  shall  be 
filed  with  the  commissioner  a  complaint 
under  oath  setting  forth  facts  showing, 
or  if  the  commissioner  has  reason  to  be- 
lieve, that  any  person  who  has  a  permit 
is  not  in  good  faith  conforming  to  the 
provisions  of  this  Act,  or  has  violated  the 
laws  of  any  State  relating  to  intoxicating 
liquor,  the  commissioner  or  his  agent 
shall  immediately  issue  an  order  citing 
such  person  to  appear  before  him  on  a 
day  named  not  more  than  thirty  and  not 
less  than  fifteen  days  from  the  date  of 
service  upon  such  permittee  of  a  copy  of 
the  citation,  which  citation  shall  be  ac- 
companied by  a  copy  of  such  complaint, 


22 


NATIONAL  PROHIBITION  ACT 


Revocation 
of  Permit 


Review  by 
Court 


Record  of 

Liquor 

Handled 


or  in  the  event  that  the  proceedings  be 
initiated  by  the  commissioner,  with  a 
statement  of  the  facts  constituting  the 
violation  charged,  at  which  time  a  hear- 
ing shall  be  had  unless  continued  for 
cause.  Such  hearings  shall  be  held  within 
the  judicial  district  and  within  fifty  miles 
of  the  place  where  the  offense  is  alleged 
to  have  occurred,  unless  the  parties  agree 
on  another  place.  If  it  be  found  that 
such  person  has  been  guilty  of  willfully 
violating  any  such  laws,  as  charged,  or 
has  not  in  good  faith  conformed  to  the 
provisions  of  this  Act,  such  permit  shall 
be  revoked,  and  no  permit  shall  be  granted 
to  such  person  within  one  year  thereafter. 
Should  the  permit  be  revoked  by  the  com- 
missioner, the  permittee  may  have  a  re- 
view of  his  decision  before  a  court  of  eq- 
uity in  the  manner  provided  in  section  5 
hereof.  During  the  pendency  of  such  ac- 
tion such  permit  shall  be  temporarily  re- 
voked. 

SEC.  10.  No  person  shall  manufacture, 
purchase  for  sale,  sell,  or  transport  any 
liquor  without  making  at  the  time  a  per- 
manent record  thereof  showing  in  detail 
the  amount  and  kind  of  liquor  manufac- 
tured, purchased,  sold  or  transported,  to- 
gether with  the  names  and  addresses  of 
the  persons  to  whom  sold,  in  case  of  sale, 
and  the  consignor  and  consignee  in  case 


NATIONAL  PROHIBITION  ACT 


23 


Manufacturers 
and  Druggists 
Records 


Sale  Re- 
stricted to 
Permittees 


Labels 


Specifications 
in  Labels 


of  transportation,  and  the  time  and  place 
of  such  manufacture,  sale,  or  transporta- 
tion. The  commissioner  may  prescribe 
the  form  of  such  record,  which  shall  at  all 
times  be  open  to  inspection  as  in  this  Act 
provided. 

SEC.  11.  All  manufacturers  and  whole- 
sale or  retail  druggists  shall  keep  as  a 
part  of  the  records  required  of  them  a 
copy  of  all  permits  to  purchase  on  which 
a  sale  of  any  liquor  is  made,  and  no  man- 
ufacturer or  wholesale  druggist  shall  sell 
or  otherwise  dispose  of  any  liquor  except 
at  wholesale  and  only  to  persons  having 
permits  to  purchase  in  such  quantities. 

SEC.  12.  All  persons  manufacturing  liq- 
uor for  sale  under  the  provisions  of  this 
title  shall  securely  and  permanently  at- 
tach to  every  container  thereof,  as  the 
same  is  manufactured,  a  label  stating 
name  of  manufacturer,  kind  and  quantity 
of  liquor  contained  therein,  and  the  date 
of  its  manufacture,  together  with  the 
number  of  the  permit  authorizing  the 
manufacture  thereof;  and  all  persons  pos- 
sessing such  liquor  in  wholesale  quanti- 
ties shall  securely  keep  and  maintain 
such  label  thereon;  and  all  persons  selling 
at  wholesale  shall  attach  to  every  pack- 
age of  liquor,  when  sold,  a  label  setting 
forth  the  kind  and  quantity  of  liquor 
contained  therein,  by  whom  manufac- 


24 


NATIONAL  PROHIBITION  ACT 


See  p.  154 

Duties  of 

Carriers 

Records 

Delivery 


Oath  of 
Consignee 


See  p.  158 


Duty  of 
Consignor 


tured,  the  date  of  sale,  and  the  person  to 
whom  sold;  which  label  shall  likewise  be 
kept  and  maintained  thereon  until  the 
liquor  is  used  for  the  purpose  for  which 
such  sale  was  authorized. 

SEC.  13.  It  shall  be  the  duty  of  every 
carrier  to  make  a  record  at  the  place  of 
shipment  of  the  receipt  of  any  liquor 
transported,  and  he  shall  deliver  liquor 
only  to  persons  who  present  to  the  car- 
rier a  verified  copy  of  a  permit  to  pur- 
chase, which  shall  be  made  a  part  of  the 
carrier's  permanent  record  at  the  office 
from  which  delivery  is  made. 

The  agent  of  the  common  carrier  is 
hereby  authorized  to  administer  the  oath 
to  the  consignee  in  verification  of  the 
copy  of  the  permit  presented,  who,  if  not 
personally  known  to  the  agent,  shall  be 
identified  before  the  delivery  of  the  liq- 
uor to  him.  The  name  and  address  of  the 
person  identifying  the  consignee  shall  be 
included  in  the  record. 

SEC.  14.  It  shall  be  unlawful  for  a  per- 
son to  use  or  induce  any  carrier,  or  any 
agent  or  employee  thereof,  to  carry  or 
ship  any  package  or  receptacle  contain- 
ing liquor  without  notifying  the  carrier 
of  the  true  nature  and  character  of  the 
shipment.  No  carrier  shall  transport  nor 
shall  any  person  receive  liquor  from  a 
carrier  unless  there  appears  on  the  out- 


NATIONAL  PROHIBITION  ACT 


25 


Information 
on  Package 


See  p.  161 


False 
Statement 


Order  for 
Delivery 
to  False 
Consignee 


See  p.  162 

Advertisement 
of  Liquor 


side  of  the  package  containing  such  liq- 
uor the  following  information: 

Name  and  address  of  the  consignor  or 
seller,  name  and  address  of  the  consignee, 
kind  and  quantity  of  liquor  contained 
therein,  and  number  of  the  permit  to  pur- 
chase or  ship  the  same,  together  with  the 
name  and  address  of  the  person  using  the 
permit. 

SEC.  15.  It  shall  be  unlawful  for  any 
consignee  to  accept  or  receive  any  pack- 
age containing  any  liquor  upon  which  ap- 
pears a  statement  known  to  him  to  be 
false,  or  for  any  carrier  or  other  person 
to  consign,  ship,  transport,  or  deliver  any 
such  package,  knowing  such  statement  to 
be  false. 

SEC.  16.  It  shall  be  unlawful  to  give 
to  any  carrier  or  any  officer,  agent,  or 
person  acting  or  assuming  to  act  for  such 
carrier  an  order  requiring  the  delivery  to 
any  person  of  any  liquor  or  package  con- 
taining liquor  consigned  to,  or  purporting 
or  claimed  to  be  consigned  to  a  person, 
when  the  purpose  of  the  order  is  to  en- 
able any  person  not  an  actual  bona  fide 
consignee  to  obtain  such  liquor. 

SEC.  17.  It  shall  be  unlawful  to  adver- 
tise anywhere,  or  by  any  means  or 
method,  liquor,  or  the  manufacture,  sale, 
keeping  for  sale  or  furnishing  of  the 


26 


NATIONAL  PROHIBITION  ACT 


Legitimate 
Price  Lists 


Advertisement, 
Manufacture 
or  Sale  of 
Things  for 
Making  Liq- 


See  p.  165 


same,  or  where,  how,  from  whom,  or  at 
what  price  the  same  may  be  obtained. 
No  one  shall  permit  any  sign  or  billboard 
containing  such  advertisement  to  remain 
upon  one's  premises.  But  nothing  herein 
shall  prohibit  manufacturers  and  whole- 
sale druggists  holding  permits  to  sell  liq- 
uor from  furnishing  price  lists,  with  de- 
scription of  liquor  for  sale,  to  persons 
permitted  to  purchase  liquor,  or  from  ad- 
vertising alcohol  in  business  publications 
or  trade  journals  circulating  generally 
among  manufacturers  of  lawful  alcoholic 
perfumes,  toilet  preparations,  flavoring 
extracts,  medicinal  preparations,  and  like 
articles:  Provided,  however,  That  noth- 
ing in  this  Act  or  in  the  Act  making  ap- 
propriations for  the  Post  Office  Depart- 
ment, approved  March  3,  1917  (Thirty- 
ninth  Statutes  at  Large,  Part  1,  page 
1058,  et  seq.),  shall  apply  to  newspapers 
published  in  foreign  countries  when 
mailed  to  this  country. 

SEC.  18.  It  shall  be  unlawful  to  adver- 
tise, manufacture,  sell,  or  possess  for  sale 
any  utensil,  contrivance,  machine,  prepa- 
ration, compound,  tablet,  substance,  for- 
mula direction,  or  recipe  advertised,  de- 
signed, or  intended  for  use  in  the  unlaw- 
ful manufacture  of  intoxicating  liquor. 

SEC.  19.  No  person  shall  solicit  or  re- 
ceive, nor  knowingly  permit  his  employee 


NATIONAL  PROHIBITION  ACT 


27 


Order  for  or 
Information 
Regarding 
Liquor 


Civil   Suit 
for  Causing 
Intoxication 


to  solicit  or  receive,  from  any  person  any 
order  for  liquor  or  give  any  information 
of  how  liquor  may  be  obtained  in  viola- 
tion of  this  Act. 

SEC.  20.  Any  person  who  shall  be  in- 
jured in  person,  property,  means  of  sup- 
port, or  otherwise  by  any  intoxicated 
person,  or  by  reason  of  the  intoxication 
of  any  person,  whether  resulting  in  his 
death  or  not,  shall  have  a  right  of  action 
against  any  person  who  shall,  by  unlaw- 
fully selling  to  or  unlawfully  assisting  in 
procuring  liquor  for  such  intoxicated 
person,  have  caused  or  contributed  to 
such  intoxication,  and  in  any  such  action 
such  person  shall  have  a  right  to  recover 
actual  and  exemplary  damages.  In  case 
of  the  death  of  either  party,  the  action  or 
right  of  action  given  by  this  section  shall 
survive  to  or  against  his  or  her  executor 
or  administrator,  and  the  amount  so  re- 
covered by  either  wife  or  child  shall  be 
his  or  her  sole  and  separate  property. 
Such  action  may  be  brought  in  any  court 
of  competent  jurisdiction.  In  any  case 
where  parents  shall  be  entitled  to  such 
damages,  either  the  father  or  mother  may 
sue  alone  therefor,  but  recovery  by  one  of 
such  parties  shall  be  a  bar  to  suit  brought 
by  the  other. 

SEC.  21.  Any  room,  house,  building, 
boat,  vehicle,  structure,  or  place  where 


28 


NATIONAL  PROHIBITION  ACT 


Liquor 
Nuisances 

See  p.  167 


Punishment 


Injunction 
against  Such 
Nuisance 


intoxicating  liquor  is  manufactured,  sold, 
kept,  or  bartered  in  violation  of  this  ti- 
tle, and  all  intoxicating  liquor  and  prop- 
erty kept  and  used  in  maintaining  the 
same,  is  hereby  declared  to  be  a  common 
nuisance,  and  any  person  who  maintains 
such  a  common  nuisance  shall  be  guilty 
of  a  misdemeanor  and  upon  conviction 
thereof  shall  be  fined  not  more  than  $1,000 
or  be  imprisoned  for  not  more  than  one 
year,  or  both.  If  a  person  has  knowledge 
or  reason  to  believe  that  his  room,  house, 
building,  boat,  vehicle,  structure,  or  place 
is  occupied  or  used  for  the  manufacture 
or  sale  of  liquor  contrary  to  the  provision 
of  this  title,  and  suffers  the  same  to  be  so 
occupied  or  used,  such  room,  house, 
building,  boat,  vehicle,  structure,  or  place 
shall  be  subject  to  a  lien  for  and  may  be 
sold  to  pay  all  fines  and  costs  assessed 
against  the  person  guilty  of  such  nui- 
sance for  such  violation,  and  any  such 
lien  may  be  enforced  by  action  in  any 
court  having  jurisdiction. 

SEC.  22.  An  action  to  enjoin  any  nui- 
sance defined  in  this  title  may  be  brought 
in  the  name  of  the  United  States  by  the 
Attorney  General  of  the  United  States  or 
by  any  United  States  attorney  or  any 
prosecuting  attorney  of  any  State  or  any 
subdivision  thereof  or  by  the  commis- 
sioner or  his  deputies  or  assistants.  Such 


NATIONAL  PROHIBITION  ACT 


29 


Trial 


Temporary 
Injunction 


Bond 


Order 


Abatement 


action  shall  be  brought  and  tried  as  an 
action  in  equity  and  may  be  brought  in 
any  court  having  jurisdiction  to  hear  and 
determine  equity  cases.  If  it  is  made  to 
appear  by  affidavits  or  otherwise,  to  the 
satisfaction  of  the  court,  or  judge  in  va- 
cation, that  such  nuisance  exists,  a  tem- 
porary writ  of  injunction  shall  forthwith 
issue  restraining  the  defendant  from  con- 
ducting or  permitting  the  continuance  of 
such  nuisance  until  the  conclusion  of  the 
trial.  If  a  temporary  injunction  is  prayed 
for,  the  court  may  issue  an  order  re- 
straining the  defendant  and  all  other  per- 
sons from  removing  or  in  any  way  inter- 
fering with  the  liquor  or  fixtures,  or  other 
things  used  in  connection  with  the  vio- 
lation of  this  Act  constituting  such  nui- 
sance. No  bond  shall  be  required  in  in- 
stituting such  proceedings.  It  shall  not 
be  necessary  for  the  court  to  find  the 
property  involved  was  being  unlawfully 
used  as  aforesaid  at  the  time  of  the  hear- 
ing, but  on  finding  that  the  material  alle- 
gations of  the  petition  are  true,  the  court 
shall  order  that  no  liquors  shall  be  manu- 
factured, sold,  bartered,  or  stored  in  such 
room,  house,  building,  boat,  vehicle, 
structure,  or  place,  or  any  part  thereof. 
And  upon  judgment  of  the  court  ordering 
such  nuisance  to  be  abated,  the  court  may 
order  that  the  room,  house,  building, 
structure,  boat,  vehicle,  or  place  shall  not 


30  NATIONAL  PROHIBITION  ACT 

be  occupied  or  used  for  one  year  there- 
after; but  the  court  may,  in  its  discretion, 
permit  it  to  be  occupied  or  used  if  the 
owner,  lessee,  tenant,  or  occupant  thereof 
shall  give  bond  with  sufficient  surety,  to 
be  approved  by  the  court  making  the 
order,  in  the  penal  and  liquidated  sum  of 
not  less  than  $500  nor  more  than  $1,000, 
payable  to  the  United  States,  and  con- 
ditioned that  intoxicating  liquor  will  not 
thereafter  be  manufactured,  sold,  bar- 
tered, kept,  or  otherwise  disposed  of 
therein  or  thereon,  and  that  he  will  pay 
all  fines,  costs,  and  damages  that  may  be 
assessed  for  any  violation  of  this  title 
upon  said  property. 

See       171  SEC.  23.  That    any    person    who    shall, 

with  intent   to  effect  a  sale  of  liquor,    by 
against™"  himself,  his  employee,  servant,  or  agent, 

Trafficing  for  himself  or  any  person,   company,   or 

corporation,  keep  or  carry  around  on  his 
person,  or  in  a  vehicle,  or  other  convey- 
ance whatever,  or  leave  in  a  place  for  an- 
other to  secure,  any  liquor,  or  who  shall 
travel  to  solicit,  or  solicit,  or  take,  or  ac- 
cept orders  for  the  sale,  shipment,  or  de- 
livery of  liquor  in  violation  of  this  title  is 
guilty  of  a  nuisance  and  may  be  re- 
strained by  injunction,  temporary  and 
permanent,  from  doing  or  continuing  to 
do  any  of  said  acts  or  things. 

In  such  proceedings  it  shall  not  be  nee- 


NATIONAL  PROHIBITION  ACT 


31 


Intent 


Officers' 
Fees 


Forfeiture 
of  Lease 


Violation 

of  Injunction 


Contempt 
Proceedings 


essary  to  show  any  intention  on  the  part 
of  the  accused  to  continue  such  violations 
if  the  action  is  brought  within  sixty  days 
following  any  such  violation  of  the  law. 

For  removing  and  selling  property  in 
enforcing  this  Act  the  officer  shall  be  en- 
titled to  charge  and  receive  the  same  fee 
as  the  sheriff  of  the  county  would  receive 
for  levying  upon  and  selling  property  un- 
der execution,  and  for  closing  the  prem- 
ises and  keeping  them  closed  a  reasonable 
sum  shall  be  allowed  by  the  court. 

Any  violation  of  this  title  upon  any 
leased  premises  by  the  lessee  or  occupant 
thereof  shall,  at  the  option  of  the  lessor, 
work  a  forfeiture  of  the  lease. 

SEC.  24.  In  the  case  of  the  violation  of 
any  injunction,  temporary  or  permanent, 
granted  pursuant  to  the  provisions  of  this 
title,  the  court,  or  in  vacation  a  judge 
thereof,  may  summarily  try  and  punish 
the  defendant.  The  proceedings  for  pun- 
ishment for  contempt  shall  be  commenced 
by  filing  with  the  clerk  of  the  court  from 
which  such  injunction  issued  information 
under  oath  setting  out  the  alleged  facts 
constituting  the  violation,  whereupon  the 
court  or  judge  shall  forthwith  cause  a 
warrant  to  issue  under  which  the  defend- 
ant shall  be  arrested.  The  trial  may  be 
had  upon  affidavits,  or  either  party  may 
demand  the  production  and  oral  exami- 


32 


NATIONAL  PROHIBITION  ACT 


Punishment 


See  p.  201 

Property 
Rights  in 
Liquor  or 
Articles  for 
Manufacturing 
Unlawfully 


Search 
Warrants 


Seizure 


Search  of 

Private 

Dwelling 


nation  of  the  witnesses.  Any  person 
found  guilty  of  contempt  under  the  pro- 
visions of  this  section  shall  be  punished 
by  a  fine  of  not  less  than  $500  nor  more 
than  $1,000,  or  by  imprisonment  of  not 
less  than  thirty  days  nor  more  than 
twelve  months,  or  by  both  fine  and  im- 
prisonment. 

SEC.  25.  It  shall  be  unlawful  to  have 
or  possess  any  liquor  or  property  designed 
for  the  manufacture  of  liquor  intended 
for  use  in  violating  this  title  or  which  has 
been  so  used,  and  no  property  rights  shall 
exist  in  any  such  liquor  or  property.  A 
search  warrant  may  issue  as  provided  in 
Title  XI  of  public  law  numbered  24  of  the 
Sixty-fifth  Congress,  approved  June  15, 
1917,  and  such  liquor,  the  containers 
thereof,  and  such  property  so  seized  shall 
be  subject  to  such  disposition  as  the  court 
may  make  thereof.  If  it  is  found  that 
such  liquor  or  property  was  so  unlawfully 
held  or  possessed,  or  had  been  so  unlaw- 
fully used,  the  liquor  and  all  property  de- 
signed for  the  unlawful  manufacture  of 
liquor  shall  be  destroyed  unless  the  court 
shall  otherwise  order.  No  search  war- 
rant shall  issue  to  search  any  private 
dwelling  occupied  as  such  unless  it  is  be- 
ing used  for  the  unlawful  sale  of  intoxi- 
cating liquor,  or  unless  it  is  in  part  used 
for  some  business  purpose  such  as  a  store, 


NATIONAL  PROHIBITION  ACT 


33 


See  p.  213 

Seizure  of 
Vehicle 


Bond  for 
Return   of 
Seized   Ve- 
hicles 


shop,  saloon,  restaurant,  hotel,  or  board- 
ing house.  The  term  "private  dwelling" 
shall  be  construed  to  include  the  room  or 
rooms  used  and  occupied  not  transiently 
but  solely  as  a  residence  in  an  apartment 
house,  hotel,  or  boarding  house.  The 
property  seized  on  any  such  warrant 
shall  not  be  taken  from  the  officer  seizing 
the  same  on  any  writ  of  replevin  or  other 
like  process. 

SEC.  26.  When  the  commissioner,  his 
assistants,  inspectors,  or  any  officer  of  the 
law  shall  discover  any  person  in  the  act 
of  transporting  in  violation  of  the  law, 
intoxicating  liquors  in  any  wagon,  buggy, 
automobile,  water  or  air  craft,  or  other 
vehicle,  it  shall  be  his  duty  to  seize  any 
and  all  intoxicating  liquors  found  therein 
being  transported  contrary  to  law. 
Whenever  intoxicating  liquors  trans- 
ported or  possessed  illegally  shall  be 
seized  by  an  officer  he  shall  take  posses- 
sion of  the  vehicle  and  team  or  automo- 
bile, boat,  air  or  water  craft,  or  any  other 
conveyance,  and  shall  arrest  any  person 
in  charge  thereof.  Such  officer  shall  at 
once  proceed  against  the  person  arrested 
under  the  provisions  of  this  title  in  any 
court  having  competent  jurisdiction;  but 
the  said  vehicle  or  conveyance  shall  be 
returned  to  the  owner  upon  execution  by 
him  of  a  good  and  valid  bond,  with  suffi- 


34 


NATIONAL  PROHIBITION  ACT 


Sale  of 
Vehicle 
upon  Convic- 
tion 


Liens  on 
Vehicles 


Advertisement 
for  Claimant 


cient  sureties,  in  a  sum  double  the  value 
of  the  property,  which  said  bond  shall  be 
approved  by  said  officer  and  shall  be  con- 
ditioned to  return  said  property  to  the 
custody  of  said  officer  on  the  day  of  trial 
to  abide  the  judgment  of  the  court.  The 
court  upon  conviction  of  the  person  so 
arrested  shall  order  the  liquor  destroyed, 
and  unless  good  cause  to  the  contrary  is 
shown  by  the  owner,  shall  order  a  sale  by 
public  auction  of  the  property  seized,  and 
the  officer  making  the  sale,  after  deduct- 
ing the  expenses  of  keeping  the  property, 
the  fee  for  the  seizure,  and  the  cost  of  the 
sale,  shall  pay  all  liens,  according  to  their 
priorities,  which  are  established,  by  in- 
tervention or  otherwise,  at  said  hearing 
or  in  other  proceeding  brought  for  said 
purpose,  as  being  bona  fide  and  as  having 
been  created  without  the  lienor  having 
any  notice  that  the  carrying  vehicle  was 
being  used  or  was  to  be  used  for  illegal 
transportation  of  liquor,  and  shall  pay 
the  balance  of  the  proceeds  into  the 
Treasury  of  the  United  States  as  miscel- 
laneous receipts.  All  liens  against  prop- 
erty sold  under  the  provisions  of  this 
section  shall  be  transferred  from  the  prop- 
erty to  the  proceeds  of  the  sale  of  the 
property.  If,  however,  no  one  shall  be 
found  claiming  the  team,  vehicle,  water 
or  air  craft,  or  automobile,  the  taking  of 
the  same,  with  a  description  thereof, 


NATIONAL  PROHIBITION  ACT  35 

shall  be  advertised  in  some  newspaper 
published  in  the  city  or  county  where 
taken,  or  if  there  be  no  newspaper  pub- 
lished in  such  city  or  county,  in  a  news- 
paper having  circulation  in  the  county, 
once  a  week  for  two  weeks,  and  by  hand- 
bills posted  in  three  public  places  near 
the  place  of  seizure,  and  if  no  claimant 
shall  appear  within  ten  days  after  the  last 
publication  of  the  advertisement,  the 
property  shall  be  sold  and  the  proceeds 
after  deducting  the  expenses  and  costs 
shall  be  paid  into  the  Treasury  of  the 
United  States  as  miscellaneous  receipts. 

Disposition  SEC.  27.  In  all    cases  in  which    intoxi- 

of  Confiscated  . 

Liquors  eating  liquors    may  be  subject  to  be    de- 

stroyed under  the  provisions  of  this  Act 
the  court  shall  have  jurisdiction  upon  the 
application  of  the  United  States  attorney 
to  order  them  delivered  to  any  depart- 
ment or  agency  of  the  United  States 
Government  for  medicinal,  mechanical, 
or  scientific  uses,  or  to  order  the  same 
sold  at  private  sale  for  such  purposes  to 
any  person  having  a  permit  to  purchase 
liquor  the  proceeds  to  be  covered  into  the 
Treasury  of  the  United  States  to  the 
credit  of  miscellaneous  receipts,  and  all 
liquor  heretofore  seized  in  any  suit  or 
proceeding  brought  for  violation  of  law 
may  likewise  be  so  disposed  of,  if  not 
claimed  within  sixty  days  from  the  date 
this  section  takes  effect. 


36 


NATIONAL  PROHIBITION  ACT 


General 
Powers 
of  Officers 


See  p.  234 

Punishment 
In  General 


Punishment 
of  Permittee 


SEC.  28.  The  commissioner,  his  assist- 
ants, agents,  and  inspectors,  and  all  other 
officers  of  the  United  States,  whose  duty 
it  is  to  enforce  criminal  laws,  shall  have 
all  the  power  and  protection  in  the  en- 
forcement of  this  Act  or  any  provisions 
thereof  which  is  conferred  by  law  for  the 
enforcement  of  existing  laws  relating  to 
the  manufacture  or  sale  of  intoxicating 
liquors  under  the  law  of  the  United 
States. 

SEC.  29.  Any  person  who  manufactures 
or  sells  liquor  in  violation  of  this  title 
shall  for  a  first  offense  be  fined  not  more 
than  $1,000,  or  imprisoned  not  exceeding 
six  months,  and  for  a  second  or  subse- 
quent offense  shall  be  fined  not  less  than 
$200  nor  more  than  $2,000  and  be  impris- 
oned not  less  than  one  month  nor  more 
than  five  years. 

Any  person  violating  the  provisions  of 
any  permit,  or  who  makes  any  false  rec- 
ord, report,  or  affidavit  required  by  this 
title,  or  violates  any  of  the  provisions  of 
this  title,  for  which  offense  a  special  pen- 
alty is  not  prescribed,  shall  be  fined  for  a 
first  offense  not  more  than  $500;  for  a 
second  offense  not  less  than  $100  nor 
more  than  $1,000,  or  be  imprisoned  not 
more  than  ninety  days;  for  any  subse- 
quent offense  he  shall  be  fined  not  less 
than  $500  and  be  imprisoned  not  less  than 


NATIONAL  PROHIBITION  ACT 


37 


Prior 
Conviction 


Cider  and 
Fruit  Juices 


Incrimination 
No    Excuse 
from  Testify- 
ing 


Immunity 


three  months  nor  more  than  two  years. 
It  shall  be  the  duty  of  the  prosecuting 
officer  to  ascertain  whether  the  defend- 
ant has  been  previously  convicted  and  to 
plead  the  prior  conviction  in  the  affidavit, 
information,  or  indictment.  The  penal- 
ties provided  in  this  Act  against  the  man- 
ufacture of  liquor  without  a  permit  shall 
not  apply  to  a  person  for  manufacturing 
nonintoxicating  cider  and  fruit  juices  ex- 
clusively for  use  in  his  home,  but  such 
cider  and  fruit  juices  shall  not  be  sold  or 
delivered  except  to  persons  having  per- 
mits to  manufacture  vinegar. 

SEC.  30.  No  person  shall  be  excused, 
on  the  ground  that  it  may  tend  to  incrim- 
inate him  or  subject  him  to  a  penalty  or 
forfeiture,  from  attending  and  testifying, 
or  producing  books,  papers,  documents, 
and  other  evidence  in  obedience  to  a  sub- 
poena of  any  court  in  any  suit  or  proceed- 
ing based  upon  or  growing  out  of  any  al- 
leged violation  of  this  Act;  but  no  natural 
person  shall  be  prosecuted  or  subjected 
to  any  penalty  or  forfeiture  for  or  on  ac- 
count of  any  transaction,  matter,  or  thing 
as  to  which,  in  obedience  to  a  subpoena 
and  under  oath,  he  may  so  testify  or  pro- 
duce evidence,  but  no  person  shall  be  ex- 
empt from  prosecution  and  punishment 
for  perjury  committed  in  so  testifying. 


SEC.  31.  In    case    of    a    sale    of   liquor 


38 


NATIONAL  PROHIBITION  ACT 


Venue  of 
Prosecution 


See  p.  236 

Indictments, 
etc. 


Unnecessary 
Allegations 


Bill  of 
Particulars 


See  p.  331 

Possession 
as  Prima  Fa- 
cie  Evidence 


where  the  delivery  thereof  was  made  by  a 
common  or  other  carrier  the  sale  and  de- 
livery shall  be  deemed  to  be  made  in  the 
county  or  district  wherein  the  delivery 
was  made  by  such  carrier  to  the  con- 
signee, his  agent  or  employee,  or  in  the 
county  or  district  wherein  the  sale  was 
made,  or  from  which  the  shipment  was 
made,  and  prosecution  for  such  sale  or 
delivery  may  be  had  in  any  such  county 
or  district. 

SEC.  32.  In  any  affidavit,  information, 
or  indictment  for  the  violation  of  this 
Act,  separate  offenses  may  be  united  in 
separate  counts  and  the  defendant  may 
be  tried  on  all  at  one  trial  and  the  penalty 
for  all  offenses  may  be  imposed.  It  shall 
not  be  necessary  in  any  affidavit,  infor- 
mation, or  indictment  to  give  the  name  of 
the  purchaser  or  to  include  any  defensive 
negative  averments,  but  it  shall  be  suffi- 
cient to  state  that  the  act  complained  of 
was  then  and  there  prohibited  and  unlaw- 
ful, but  this  provision  shall  not  be  con- 
strued to  preclude  the  trial  court  from 
directing  the  furnishing  the  defendant  a 
bill  of  particulars  when  it  deems  it  proper 
to  do  so. 

SEC.  33.  After  February  1,  1920,  the 
possession  of  liquors  by  any  person  not 
legally  permitted  under  this  title  to  pos- 
sess liquor  shall  be  prima  facie  evidence 


NATIONAL  PROHIBITION  ACT 


39 


Possession 
in  Private 
Dwelling 


Records 
Subject  to 
Inspection 


that  such  liquor  is  kept  for  the  purpose  of 
being  sold,  bartered,  exchanged,  given 
away,  furnished,  or  otherwise  disposed  of 
in  violation  of  the  provision  of  this  title. 
Every  person  legally  permitted  under 
this  title  to  have  liquor  shall  report  to  the 
commissioner  within  ten  days  after  the 
date  when  the  eighteenth  amendment  of 
the  Constitution  of  the  United  States 
goes  into  effect,  the  kind  and  amount  of 
intoxicating  liquors  in  his  possession. 
But  it  shall  not  be  unlawful  to  possess 
liquors  in  one's  private  dwelling  while 
the  same  is  occupied  and  used  by  him 
as  his  dwelling  only  and  such  liquor 
need  not  be  reported,  provided  such  liq- 
uors are  for  use  only  for  the  personal 
consumption  of  the  owner  thereof  and  his 
family  residing  in  such  dwelling  and  of 
his  bona  fide  guests  when  entertained  by 
him  therein;  and  the  burden  of  proof 
shall  be  upon  the  possessor  in  any  action 
concerning  the  same  to  prove  that  such 
liquor  was  lawfully  acquired,  possessed, 
and  used. 

SEC.  34.  All  records  and  reports  kept 
or  filed  under  the  provisions  of  this  Act 
shall  be  subject  to  inspection  at  any  rea- 
sonable hour  by  the  commissioner  or  any 
of  his  agents  or  by  any  public  prosecutor 
or  by  any  person  designated  by  him,  or 
by  any  peace  officer  in  the  State  where 


40 


NATIONAL  PROHIBITION  ACT 


Copies  as 
Evidence 


See  p.  463 

Repeal   of 

Inconsistent 

Laws 


Taxes  and 
Stamps 


the  record  is  kept,  and  copies  of  such  rec- 
ords and  reports  duly  certified  by  the  per- 
son with  whom  kept  or  filed  may  be  in- 
troduced in  evidence  with  like  effect  as 
the  originals  thereof,  and  verified  copies 
of  such  reports  shall  be  furnished  to  the 
commissioner  when  called  for. 

SEC.  35.  All  provisions  of  law  that  are 
inconsistent  with  this  Act  are  repealed 
only  to  the  extent  of  such  inconsistency 
and  the  regulations  herein  provided  for 
the  manufacture  or  traffic  in  intoxicating 
liquor  shall  be  construed  as  in  addition 
to  existing  laws.  This  Act  shall  not  re- 
lieve anyone  from  paying  any  taxes  or 
other  charges  imposed  upon  the  manu- 
facture or  traffic  in  such  liquor.  No  liq- 
uor revenue  stamps  or  tax  receipts  for 
any  illegal  manufacture  or  sale  shall  be 
issued  in  advance,  but  upon  evidence  of 
such  illegal  manufacture  or  sale  a  tax 
shall  be  assessed  against,  and  collected 
from,  the  person  responsible  for  such  il- 
legal manufacture  or  sale  in  double  the 
amount  now  provided  by  law,  with  an  ad- 
ditional penalty  of  $500  on  retail  dealers 
and  $1,000  on  manufacturers.  The  pay- 
ment of  such  tax  or  penalty  shall  give  no 
right  to  engage  in  the  manufacture  or 
sale  of  such  liquor,  or  relieve  anyone  from 
criminal  liability,  nor  shall  this  Act  re- 
lieve any  person  from  any  liability,  civil 


NATIONAL  PROHIBITION  ACT 


41 


Compromise 
of  Civil 
Action 


Invalidity 
Part  of  Act 


Storage  and 
Transporta- 
tion of 
Bonded 
Liquor 


Manufacture 
of    Non-Alco- 
holic  Bever- 
ages 


or   criminal,    heretofore   or   hereafter   in- 
curred under  existing  laws. 

The  commissioner,  with  the  approval 
of  the  Secretary  of  the  Treasury,  may 
compromise  any  civil  cause  arising  under 
this  title  before  bringing  action  in  court; 
and  with  the  approval  of  the  Attorney 
General  he  may  compromise  any  such 
cause  after  action  thereon  has  been  com- 
menced. 

SEC.  36.  If  any  provision  of  this  Act 
shall  be  held  invalid  it  shall  not  be  con- 
strued to  invalidate  other  provisions  of 
the  Act. 

SEC.  37.  Nothing  herein  shall  prevent 
the  storage  in  United  States  bonded  ware- 
houses of  all  liquor  manufactured  prior 
to  the  taking  effect  of  this  Act,  or  pre- 
vent the  transportation  of  such  liquor  to 
such  warehouses  or  to  any  wholesale 
druggist  for  sale  to  such  druggist  for  pur- 
poses not  prohibited  when  the  tax  is  paid, 
and  permits  may  be  issued  therefor. 

A  manufacturer  of  any  beverage  con- 
taining less  than  one-half  of  1  per  centum 
of  alcohol  by  volume  may,  on  making  ap- 
plication and  giving  such  bond  as  the 
commissioner  shall  prescribe,  be  given  a 
permit  to  develop  in  the  manufacture 
thereof  by  the  usual  methods  of  fermenta- 
tion and  fortification  or  otherwise  a  liq- 


42  NATIONAL  PROHIBITION  ACT 

uid  such  as  beer,  ale,  porter,  or  wine,  con- 
Over  y^%  taining  more  than  one-half  of  1  per  centum 
of  alcohol  by  volume,  but  before  any  such 
liquid  is  withdrawn  from  the  factory  or 
otherwise  disposed  of  the  alcoholic  con- 
tents thereof  shall  under  such  rules  and 
regulations  as  the  commissioner  may  pre- 
Reduction  scribe  be  reduced  below  such  one-half  of 
1  per  centum  of  alcohol:  Provided,  That 
such  liquid  may  be  removed  and  trans- 
ported, under  bond  and  under  such  regu- 
lations as  the  commissioner  may  pre- 
scribe, from  one  bonded  plant  or  ware- 
house to  another  for  the  purpose  of  hav- 
ing the  alcohol  extracted  therefrom.  And 
such  liquids  may  be  developed,  under 
permit,  by  persons  other  than  the  manu- 
facturers of  beverages  containing  less 
than  one-half  of  1  per  centum  of  alcohol 
by  volume,  and  sold  to  such  manufact- 
urers for  conversion  into  such  beverages. 
Tax  The  alcohol  removed  from  such  liquid,  if 
evaporated  and  not  condensed  and  saved, 
shall  not  be  subject  to  tax;  if  saved,  it 
shall  be  subject  to  the  same  law  as  other 
alcoholic  liquors. 

Credit  shall  be  allowed  on  the  tax  due 
on  any  alcohol  so  saved  to  the  amount  of 
any  tax  paid  upon  distilled  spirits  or 
brandy  used  in  the  fortification  of  the 
liquor  from  which  the  same  is  saved. 

When  fortified  wines  are  made  and  used 


NATIONAL  PROHIBITION  ACT 


43 


Burden  of 
Proof  of 
Alcoholic 
Percentage 


for  the  production  of  nonbeverage  alco- 
hol and  dealcoholized  wines  containing 
less  than  one-half  of  1  per  centum  of  al- 
cohol by  volume,  no  tax  shall  be  assessed 
or  paid  on  the  spirits  used  in  such  forti- 
fication, and  such  dealcoholized  wines 
produced  under  the  provisions  of  this 
Act,  whether  carbonated  or  not,  shall  not 
be  subject  to  the  tax  on  artificially  carbo- 
nated or  sparkling  wines,  but  shall  be 
subject  to  the  tax  on  still  wines  only. 

In  any  case  where  the  manufacturer  is 
charged  with  manufacturing  or  selling 
for  beverage  purposes  any  malt,  vinous, 
or  fermented  liquids  containing  one-half 
of  1  per  centum  or  more  of  alcohol  by  vol- 
ume, or  in  any  case  where  the  manufac- 
turer, having  been  permitted  by  the  com- 
missioner to  develop  a  liquid  such  as  ale, 
beer,  porter,  or  wine  containing  more 
than  one-half  of  1  per  centum  of  alcohol 
by  volume  in  the  manner  and  for  the  pur- 
pose herein  provided,  is  charged  with 
failure  to  reduce  the  alcoholic  content  of 
any  such  liquid  below  such  one-half  of  1 
per  centum  before  withdrawing  the  same 
from  the  factory,  then  in  either  such  case 
the  burden  of  proof  shall  be  on  such  man- 
ufacturer to  show  that  such  liquid  so 
manufactured,  sold,  or  withdrawn  con- 
tains less  than  one-half  of  1  per  centum 
of  alcohol  by  volume.  In  any  suit  or  pro- 


44  NATIONAL  PROHIBITION  ACT 

ceeding  involving  the  alcoholic  content  of 
any  beverage,  the  reasonable  expense  of 
analysis  of  such  beverage  shall  be  taxed 
as  costs  in  the  case. 

Appointment  gEC>  3g.  The  Commissioner  of  Internal 

of  Necessary 

Assistants  Revenue  and  the  Attorney  General  of  the 

United  States  are  hereby  respectively  au- 
thorized to  appoint  and  employ  such  as- 
sistants, experts,  clerks,  and  other  em- 
ployees in  the  District  of  Columbia  or 
elsewhere,  and  to  purchase  such  supplies 
and  equipment  as  they  may  deem  neces- 
sary for  the  enforcement  of  the  provisions 
of  this  Act,  but  such  assistants,  experts, 
clerks,  and  other  employees,  except  such 
executive  officers  as  may  be  appointed 
by  the  commissioner  or  the  Attorney  Gen- 
eral to  have  immediate  direction  of  the 
enforcement  of  the  provisions  of  this  Act, 
and  persons  authorized  to  issue  permits, 
and  agents  and  inspectors  in  the  field 
service,  shall  be  appointed  under  the  rules 
and  regulations  prescribed  by  the  Civil 
Service  Act:  Provided,  That  the  commis- 
sioner and  Attorney  General  in  making 
such  appointments  shall  give  preference 
to  those  who  have  served  in  the  military 
or  naval  service  in  the  recent  war,  if  oth- 
erwise qualified,  and  there  is  hereby  au- 
thorized to  be  appropriated,  out  of  any 
money  in  the  Treasury  not  otherwise  ap- 
propriated, such  sum  as  may  be  required 


NATIONAL  PROHIBITION  ACT 


45 


"Alcohol" 
Defined 


for  the  enforcement  of  this  Act,  including 
personal  services  in  the  District  of  Co- 
lumbia, and  for  the  fiscal  year  ending 
June  30,  1920,  there  is  hereby  appropri- 
ated, out  of  any  money  in  the  Treasury 
not  otherwise  appropriated,  the  sum  of 
$2,000,000  for  the  use  of  the  Commis- 
sioner of  Internal  Revenue  and  $100,000 
for  the  use  of  the  Department  of  Justice 
for  the  enforcement  of  the  provisions  of 
this  Act,  including  personal  services  in 
the  District  of  Columbia,  and  necessary 
printing  and  binding. 

SEC.  39.  In  all  cases  wherein  the  prop- 
erty of  any  citizen  is  proceeded  against 
or  wherein  a  judgment  affecting  it  might 
be  rendered,  and  the  citizen  is  not  the  one 
who  in  person  violated  the  provisions  of 
the  law,  summons  must  be  issued  in  due 
form  and  served  personally,  if  said  per- 
son is  to  be  found  within  the  jurisdiction 
of  the  court. 

TITLE  III. 

INDUSTRIAL    ALCOHOL. 

SEC.  1.  When  used  in  this  title — 

The  term  " alcohol"  means  that  sub- 
stance known  as  ethyl  alcohol,  hydrated 
oxide  of  ethyl,  or  spirit  of  wine,  from 
whatever  source  or  whatever  processes 
produced. 


46 

"Container" 


Industrial 

Alcohol 

Permits 


Warehouses 
for  Industrial 
Alcohol 


NATIONAL  PROHIBITION  ACT 

The  term  "container"  includes  any  re- 
ceptacle, vessel,  or  form  of  package,  tank, 
or  conduit  used  or  capable  of  use  for 
holding,  storing,  transferring,  or  ship- 
ment of  alcohol. 


INDUSTRIAL    ALCOHOL    PLANTS    AND    WARE- 
HOUSES. 

SEC.  2.  Any  person  now  producing  al- 
cohol shall,  within  thirty  days  after  the 
passage  of  this  Act,  make  application  to 
the  commissioner  for  registration  of  his 
industrial  alcohol  plant,  and  as  soon 
thereafter  as  practicable  the  premises 
shall  be  bonded  and  permit  may  issue  for 
the  operation  of  such  plant,  and  any  per- 
son hereafter  establishing  a  plant  for  the 
production  of  alcohol  shall  likewise  be- 
fore operation  make  application,  file 
bond,  and  receive  permit. 

SEC.  3.  Warehouses  for  the  storage  and 
distribution  of  alcohol  to  be  used  exclu- 
sively for  other  than  beverage  purposes 
may  be  established  upon  filing  of  appli- 
cation and  bonds,  and  issuance  of  permit 
at  such  places,  either  in  connection  with 
the  manufacturing  plant  or  elsewhere,  as 
the  commissioner  may  determine;  and 
the  entry  and  storage  of  alcohol  therein, 
and  the  withdrawals  of  alcohol  therefrom 
shall  be  made  in  such  containers  and  by 
such  means  as  the  commissioner  by  regu- 
lation may  prescribe. 


NATIONAL  PROHIBITION  ACT 


47 


Transfer 


Tax 


Withdrawal 
from  Bonded 
Warehouse 


SEC.  4.  Alcohol  produced  at  any  regis- 
tered industrial  alcohol  plant  or  stored  in 
any  bonded  warehouse  may  be  trans- 
ferred under  regulations  to  any  other  reg- 
istered industrial  alcohol  plant  or  bonded 
warehouse  for  any  lawful  purpose. 

SEC.  5.  Any  tax  imposed  by  law  upon 
alcohol  shall  attach  to  such  alcohol  as 
soon  as  it  is  in  existence  as  such,  and  all 
proprietors  of  industrial  alcohol  plants 
and  bonded  warehouses  shall  be  jointly 
and  severally  liable  for  any  and  all  taxes 
on  any  and  all  alcohol  produced  thereat 
or  stored  therein.  Such  taxes  shall  be  a 
first  lien  on  such  alcohol  and  the  prem- 
ises and  plant  in  which  such  alcohol  is 
produced  or  stored,  together  with  all  im- 
provements and  appurtenances  thereunto 
belonging  or  in  any  wise  appertaining. 

SEC.  6.  Any  distilled  spirits  produced 
and  fit  for  beverage  purposes  remaining 
in  any  bonded  warehouse  on  or  before 
the  date  when  the  eighteenth  amendment 
of  the  Constitution  of  the  United  States 
goes  into  effect,  may,  under  regulations, 
be  withdrawn  therefrom  either  for  de- 
naturation  at  any  bonded  denaturing 
plant  or  for  deposit  in  a  bonded  ware- 
house established  under  this  Act;  and 
when  so  withdrawn,  if  not  suitable  as  to 
proof,  purity,  or  quality  for  other  than 
beverage  purposes,  such  distilled  spirits 


48 


NATIONAL  PROHIBITION  ACT 


Denaturing 


Continuation 
of  Distillery 
or  Bonded 
Warehouse 


Production 
of  Industrial 
Alcohol 


Exemption 
from  Existing 
Statutes 


shall  be  redistilled,  purified,  and  changed 
in  proof  so  as  to  render  such  spirits  suit- 
able for  other  purposes,  and  having  been 
so  treated  may  thereafter  be  denatured 
or  sold  in  accordance  with  the  provisions 
of  this  Act. 

SEC.  7.  Any  distillery  or  bonded  ware- 
house heretofore  legally  established  may, 
upon  filing  application  and  bond  and  the 
granting  of  permit,  be  operated  as  an  in- 
dustrial alcohol  plant  or  bonded  ware- 
house under  the  provisions  of  this  title 
and  regulations  made  thereunder. 

SEC.  8.  Alcohol  may  be  produced  at 
any  industrial  alcohol  plant  established 
under  the  provisions  of  this  title  from 
any  raw  materials  or  by  any  processes 
suitable  for  the  production  of  alcohol, 
and,  under  regulations,  may  be  used  at 
any  industrial  alcohol  plant  or  bonded 
warehouse  or  sold  or  disposed  of  for  any 
lawful  purpose,  as  in  this  Act  provided. 

SEC.  9.  Industrial  alcohol  plants  and 
bonded  warehouses  established  under  the 
provisions  of  this  title  shall  be  exempt 
from  the  provisions  of  sections  3154,  3244, 
3258,  3259,  3260,  3263,  3264,  3266,  3267, 
3268,  3269,  3271,  3273,  3274,  3275,  3279, 
3280,  3283,  3284,  3285,  3286,  3287,  3288, 
3289,  3290,  3291,  3292,  3293,  3294,  3295, 
3302,  3303,  3307,  3308,  3309,  3310,  3311, 
3312,  3313,  3314,  and  3327  of  the  Revised 


NATIONAL  PROHIBITION  ACT 


49 


Statutes;  sections  48  to  60,  inclusive,  and 
sections  62  and  67  of  the  Act  of  August 
27,  1894  (Twenty-eighth  Statutes,  pages 
563  to  568),  and  from  such  other  provi- 
sions of  existing  laws  relating  to  distill- 
ers and  bonded  warehouses  as  may,  by 
regulations,  be  declared  inapplicable  to 
industrial  alcohol  plants  and  bonded 
warehouses  established  under  this  Act. 

Regulations  may  be  made  embodying 
any  provision  of  the  sections  above 
enumerated. 


Denaturing 
Plants 


Sale  of 

Denatured 

Alcohol 


Distilled 
Vinegar 


TAX-FREE  ALCOHOL,. 

SEC.  10.  Upon  the  filing  of  application 
and  bond  and  issuance  of  permit  dena- 
turing plants  may  be  established  upon  the 
premises  of  any  industrial  alcohol  plant, 
or  elsewhere,  and  shall  be  used  exclusively 
for  the  denaturation  of  alcohol  by  the  ad- 
mixture of  such  denaturing  materials  as 
shall  render  the  alcohol,  or  any  compound 
in  which  it  is  authorized  to  be  used,  unfit 
for  use  as  an  intoxicating  beverage. 

Alcohol  lawfully  denatured  may,  under 
regulations,  be  sold  free  of  tax  either  for 
domestic  use  or  for  export. 

Nothing  in  this  Act  shall  be  construed 
to  require  manufacturers  of  distilled  vine- 
gar to  raise  the  proof  of  any  alcohol  used 
in  such  manufacture  or  to  denature  the 
same. 


50 


NATIONAL  PROHIBITION  ACT 


Removal  for 
Denaturing 


Tax  Free 
Withdrawal 


SEC.  11.  Alcohol  produced  at  any  in- 
dustrial alcohol  plant  or  stored  in  any 
bonded  warehouse  may,  under  regula- 
tions, be  withdrawn  tax  free  as  provided 
by  existing  law  from  such  plant  or  ware- 
house for  transfer  to  any  denaturing 
plant  for  denaturation,  or  may,  under 
regulations,  before  or  after  denaturation, 
be  removed  from  any  such  plant  or  ware- 
house for  any  lawful  tax-free  purpose. 

Spirits  of  less  proof  than  one  hundred 
and  sixty  degrees  may,  under  regulations, 
be  deemed  to  be  alcohol  for  the  purpose 
of  denaturation,  under  the  provisions  of 
this  title. 

Alcohol  may  be  withdrawn,  under  reg- 
ulations, from  any  industrial  plant  or 
bonded  warehouse  tax  free  by  the  United 
States  or  any  governmental  agency 
thereof,  or  by  the  several  States  and  Ter- 
ritories or  any  municipal  subdivision 
thereof  or  by  the  District  of  Columbia,  or 
for  the  use  of  any  scientific  university  or 
college  of  learning,  any  laboratory  for  use 
exclusively  in  scientific  research,  or  for 
use  in  any  hospital  or  sanitorium. 

But  any  person  permitted  to  obtain  al- 
cohol tax  free,  except  the  United  States 
and  the  several  States  and  Territories 
and  subdivisions  thereof,  and  the  District 
of  Columbia,  shall  first  apply  for  and  se- 
cure a  permit  to  purchase  the  same  and 


NATIONAL  PROHIBITION  ACT 


51 


give  the  bonds  prescribed  under  Title  II 
of  this  Act,  but  alcohol  withdrawn  for 
nonbeverage  purposes  for  use  of  the 
United  States  and  the  Several  States, 
Territories,  and  subdivisions  thereof,  and 
the  District  of  Columbia  may  be  pur- 
chased and  withdrawn  subject  only  to 
such  regulations  as  may  be  prescribed. 

GENERAL  PROVISIONS. 

Penalties  SEC.  12.  The  penalties  provided  in  this 

title  shall  be  in  addition  to  any  penalties 
provided  in  Title  II  of  this  Act,  unless 
expressly  otherwise  therein  provided. 

Regulations  SEC.  13.  The  commissioner    shall  from 

time  to  time  issue  regulations  respecting 
the  establishment,  bonding,  and  opera- 
tion of  industrial  alcohol  plants,  denatur- 
ing plants,  and  bonded  warehouses  au- 
thorized herein,  and  the  distribution,  sale, 
export,  and  use  of  alcohol  which  may  be 
necessary,  advisable,  or  proper,  to  secure 
the  revenue,  to  prevent  diversion  of  the 
alcohol  to  illegal  uses,  and  to  place  the 
nonbeverage  alcohol  industry  and  other 
industries  using  such  alcohol  as  a  chem- 
ical raw  material  or  for  other  lawful 
purpose  upon  the  highest  possible  plane 
of  scientific  and  commercial  efficiency 
consistent  with  the  interests  of  the  Gov- 
ernment, and  which  shall  insure  an  am- 
ple supply  of  such  alcohol  and  promote 


52 


NATIONAL  PROHIBITION  ACT 


Remission 
of  Tax  on 
Lost  Alcohol 


Punishment 
for  Violation 
of   This   Title 


its  use  in  scientific  research  and  the  de- 
velopment of  fuels,  dyes,  and  other  law- 
ful products. 

SEC.  14.  Whenever  any  alcohol  is  lost 
by  evaporation  or  other  shrinkage,  leak- 
age, casualty,  or  unavoidable  cause  dur- 
ing distillation,  redistillation,  denatura- 
tion,  withdrawal,  piping,  shipment,  ware- 
housing, storage,  packing,  transfer,  or 
recovery  of  any  such  alcohol  the  commis- 
sioner may  remit  or  refund  any  tax  in- 
curred under  existing  law  upon  such  al- 
cohol, provided  he  is  satisfied  that  the  al- 
cohol has  not  been  diverted  to  any  illegal 
use:  Provided,  also,  That  such  allowance 
shall  not  be  granted  if  the  person  claim- 
ing same  is  indemnified  against  such  loss 
by  a  valid  claim  of  insurance. 

SEC.  15.  Whoever  operates  an  industrial 
alcohol  plant  or  a  denaturing  plant  with- 
out complying  with  the  provisions  of  this 
title  and  lawful  regulations  made  there- 
under, or  whoever  withdraws  or  attempts 
to  withdraw  or  secure  tax  free  any  alco- 
hol subject  to  tax,  or  whoever  otherwise 
violates  any  of  the  provisions  of  this  title 
or  of  regulations  lawfully  made  thereun- 
der shall  be  liable,  for  the  first  offense,  to 
a  penalty  of  not  exceeding  $1,000,  or  im- 
prisonment not  exceeding  thirty  days,  or 
both,  and  for  a  second  or  cognate  offense 
to  a  penalty  of  not  less  than  $100  nor  more 


NATIONAL  PROHIBITION  ACT 


53 


Collection 
of  Tax 


Seizure   of 
Property 


Application  of 
Existing  Laws 


Repeal  of 

Conflicting 

Statutes 


than  $10,000,  and  to  imprisonment  of  not 
less  than  thirty  days  nor  more  than  one 
year.  It  shall  be  lawful  for  the  commis- 
sioner in  all  cases  of  second  or  cognate 
offense  to  refuse  to  issue  for  a  period  of 
one  year  a  permit  for  the  manufacture  or 
use  of  alcohol  upon  the  premises  of  any 
person  responsible  in  any  degree  for  the 
violation. 

SEC.  16.  Any  tax  payable  upon  alcohol 
under  existing  law  may  be  collected  ei- 
ther by  assessment  or  by  stamp  as  regula- 
tions shall  provide;  and  if  by  stamp,  reg- 
ulations shall  issue  prescribing  the  kind 
of  stamp  to  be  used  and  the  manner  of 
affixing  and  canceling  the  same. 

SEC.  17.  When  any  property  is  seized 
for  violation  of  this  title  it  may  be  re- 
leased to  the  claimant  or  to  any  interven- 
ing party,  in  the  discretion  of  commis- 
sioner, on  a  bond  given  and  approved. 

SEC.  18.  All  administrative  provisions 
of  internal-revenue  law,  including  those 
relating  to  assessment,  collection,  abate- 
ment, and  refund  of  taxes  and  penalties, 
and  the  seizure  and  forfeiture  of  prop- 
erty, are  made  applicable  to  this  title  in 
so  far  as  they  are  not  inconsistent  with 
the  provisions  thereof. 

SEC.  19.  All  prior  statutes  relating  to 
alcohol  as  denned  in  this  title  are  hereby 


54  NATIONAL  PROHIBITION  ACT 

repealed  in  so  far  as  they  are  inconsistent 
with  the  provisions  of  this  title. 

Canal  Zone  SEC.  20.  That  it    shall  be  unlawful    to 

import  or  introduce  into  the  Canal  Zone, 
or  to  manufacture,  sell,  give  away,  dis- 
pose of,  transport,  or  have  in  one's  pos- 
session or  under  one's  control  within  the 
Canal  Zone,  any  alcoholic,  fermented, 
brewed,  distilled,  vinous,  malt,  or  spirit- 
uous liquors,  except  for  sacramental,  sci- 
entific, pharmaceutical,  industrial,  or  me- 
dicinal purposes,  under  regulations  to  be 
made  by  the  President,  and  any  such  liq- 
uors within  the  Canal  Zone  in  violation 
hereof  shall  be  forfeited  to  the  United 
States  and  seized:  Provided,  That  this 
section  shall  not  apply  to  liquor  in  transit 
through  the  Panama  Canal  or  on  the  Pan- 
ama Railroad. 

That  each  and  every  violation  of  any 
of  the  provisions  of  this  section  shall  be 
punished  by  a  fine  of  not  more  than 
$1,000  or  imprisonment  not  exceeding  six 
months  for  a  first  offense,  and  by  a  fine 
not  less  than  $200  nor  more  than  $2,000 
and  imprisonment  not  less  than  one  month 
nor  more  than  five  years  for  a  second  or 
subsequent  offense. 

That  all  offenses  heretofore  committed 
within  the  Canal  Zone  may  be  prosecuted 
and  all  penalties  therefor  enforced  in  the 


NATIONAL  PROHIBITION  ACT  55 

same  manner  and  to  the  same  extent  as 
if  this  Act  had  not  been  passed. 

* 

When  Act  SEC.  21.  Titles    I  and  III    and  sections 

Effective  ^    2?>  37>  and  gg    Qf  title  jj    Qf  ^    A(jt 

shall  take  effect  and  be  in  force  from  and 
after  the  passage  and  approval  of  the 
Act.  The  other  sections  of  title  II  shall 
take  effect  and  be  in  force  from  and  after 
the  date  when  the  eighteenth  amendment 
of  the  Constitution  of  the  United  States 
goes  into  effect. 


Constitutionality  and  Preliminary 
Consideration 


There  have  been  many  judicial  decisions  as  to  the  constitu- 
tionality of  the  various  state  prohibition  laws,  but  the  en- 
tirely new  point  of  departure  supplied  by  the  Prohibition 
Amendment  to  the  Federal  Constitution,  makes  it  exceed- 
ingly unlikely,  if  not  impossible,  that  any  question  as  to  the 
constitutionality  of  this  "National  Prohibition  Act"  will  be 
successfully  raised ;  except,  possibly,  as  to  whether  the 
Eighteenth  Amendment  itself  was  constitutionally  adopted, 
or  whether  the  provisions  of  the  Act  are  within  the  author- 
ity conferred  upon  Congress  by  the  said  amendment.  We 
shall  therefore  be  very  brief  in  our  treatment  of  its  consti- 
tutionality as  substantive  law,  in  most  cases  giving  merely 
a  citation  of  the  decisions. 

As  to  Constitutionality  of  Special  Provisions. — See 

post,  where  their  subject  matter  is  treated. 

The  XVmth  Amendment  to  the  Constitution  of  the  United 
States. 

Not  a  Law  Complete  in  Itself. — The  prohibition 
amendment  to  the  federal  Constitution  is  not  a  law  complete 
in  itself,  in  that  it  fixes  no  penalty  for  its  violation. 

Ford  v.  State  (Tex.  Civ.  App.),  209  S.  W.  490,  494. 

Validity  and  Mode  of  Adoption. — The  addition  to  the 
Constitution  of  the  United  States  of  an  amendment  prohib- 
iting the  manufacture,  sale,  etc.,  of  intoxicating  liquors,  is  an 
amendment  of  the  organic  law,  and  not  prohibited  by  article 
10,  reserving  to  the  states  or  people  the  powers  not  dele- 
gated'to  the  United  States  by  the  Constitution,  nor  prohib- 
ited by  it  to  the  states. 

Ohio  v.  Cox  (D.  C),  257  Fed.  334,  335. 


58     CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION 

The  requirement  of  Const.  U.  S.  art.  5,  that  "two-thirds 
of  both  houses"  shall  propose  amendments  for  adoption  or 
rejection  by  the  state  Legislatures,  means  two-thirds  of  a 
quorum  of  each  house,  and  not  two-thirds  of  the  whole 
membership  of  each,  since  "house"  means  a  body  of  men 
united  in  their  legislative  capacity. 

Ohio  v.  Cox  (D.  C.),  257  Fed.  334,  336. 

Congress  has  no  concern  of  the  manner  in  which  the  peo- 
ple of  the  several  states  pass  upon  proposed  amendments 
to  the  United  States  Constitution. 

Mullen  v.  Howell  (Wash.),  181  Pac.  920. 

The  authority  to  act  in  the  matter  of  a  proposed  amend- 
ment to  the  Constitution  of  the  United  States  does  not  arise 
in  or  out  of  the  Constitution  of  the  state,  but  arises  out  of 
the  federal  Constitution,  and  any  act,  whether  by  resolution 
or  bill,  on  the  part  of  the  state  Legislature,  is  a  sufficient 
expression  of  the  legislative  will,  unless  Congress  itself  chal- 
lenges the  method  or  manner  of  its  adoption. 
Mullen  v.  Howell  (Wash.),  181  Pac.  920. 

Referendums. — Const.  U.  S.  art.  5,  providing  that  pro- 
posed amendment  shall  be  valid  "when  ratified  by  the  Leg- 
islatures of  three-fourths  of  the  several  states,  or  by  con- 
ventions in  three-fourths  thereof,"  does  not  preclude  sub- 
mission of  joint  resolution  of  state  Legislature  ratifying 
proposed  amendment  to  a  referendum,  the  words  "Legisla- 
tures" and  "conventions"  not  having  present-day  meanings, 
the  former  referring  to  legislative  authority,  including  all 
its  branches,  and  not  merely  the  legislative  assembly. 
Mullen  v.  Howell  (\Vash.),  181  Pac.  920. 

Under  the  Washington  State  Const,  Amend.  7,  art.  2,  §  1, 
providing  for  referendum  of  "acts,  bills,  or  laws,"  joint 
resolution  of  state  Legislature  ratifying  constitutional 
amendment  for  national  prohibition  proposed  by  Res.  Dec. 
19,  1917,  40  Stat.  1050,  is  subject  to  referendum,  the  amend- 
ment to  the  United  States  Constitution  being  a  law  within 
the  seventh  amendment  of  the  state  Constitution. 
Mullen  v.  Howell  (Wash.),  181  Pac.  920. 

But  it  was  held  by  the  Oregon  Supreme  Court  that  nei- 


CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION     59 

ther  House  Joint  Resolutions  No.  1,  ratifying  proposed 
"National  Prohibition  Amendment,"  nor  any  other  resolu- 
tion of  the  Legislature,  is  subject  to  referendum  by  Oregon 
Const,  art.  4,  §§  1,  la;  such  sections  applying  only  to  pro- 
posed laws. 

Herbring  v.  Brown,  (Ore.),  180  Pac.  328. 

To  ascertain  what  is  meant  by  the  term  "bill"  and  "act" 
in  Const,  art.  4,  §§  1,  la  (amended),  as  to  initiative  and  ref- 
erendum, reference  must  be  made  to  the  sense  in  which  the 
words  were  used  before  such  amendments  were  passed,  and, 
when  reference  is  so  made,  it  is  found  that  the  first  term 
means  a  proposed  law  (article  4,  §  1  [original],  and  sections 
18,  19;  article  5,  §  15),  while  the  second  means  a  bill  which 
has  been  enacted  by  the  Legislature  into  a  law  (article  4,  §§ 
20,  21,  22,  28)  ;  a  "joint  resolution"  being  neither  a  bill  nor 
an  act. 

Herbring  v.  Brown,  (Ore.),  180  Pac.  328. 

The  subject  matter  upon  which  the  powers  given  by  Const, 
art.  4,  §§  1,  la,  may  be  exercised,  namely,  initiative  laws, 
constitutional  amendments,  and  acts  of  the  Legislature  re- 
ferred to  the  people,  are  referred  to  collectively  as  "meas- 
ures merely  as  a  matter  of  convenience  and  not  with  intent 
to  include  other  and  different  powers." 

Herbring  v.  Brown,  (Ore.),  180  Pac.  328. 

But  in  mandamus  to  compel  submission  of  joint  resolution 
ratifying  amendment  to  United  States  constitution,  the  con- 
tention that  the  Legislature  has  no  power  to  act  by  resolution 
is  nonjusticiable ;  the  power  to  question  the  manner  of  adop- 
tion being  in  Congress,  and  not  the  courts. 

Mullen  v.  Howell,  (Wash.),  181  Pac.  920. 

Police  Powers  of  States  to  Regulate,  Restrict  or  Forbid 
the  Manufacture  or  Sale,  Gift,  Purchase  and  Trans- 
portation of  Intoxicating  Liquors,  Fully  Recognized. 

In  General. — It  must  now  be  regarded  as  settled  that,  on 
account  of  their  well-known  noxious  qualities  and  the  extra- 
ordinary evils  shown  by  experience  commonly  to  be  conse- 
quent upon  their  use.  a  state  has  power  absolutely  to  pro- 
hibit manufacture,  gift,  purchase,  sale,  or  transportation  of 


60    CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION 

intoxicating  liquors  within  its  borders  without  violating  the 
guarantees  of  the  fourteenth  Amendment. 

Seaboard  Air  Line  Railway  v.  North  Carolina,  245  U. 

S.  298,  38  Sup.  Ct.  96,  62  L.  Ed.  299. 
Clark  Distilling  Co.  v.  Western  Maryland  R.  Co.,  242  U. 

S.  311,  321,  37  Sup.  Ct.  180,  61  L.  Ed.  326,  L.  R.  A. 

1917B,  1218n,  Ann.  Cas.  1917B,  845. 
Crane  v.  Campbell,  245  U.  S.  304,  38  Sup.  Ct.  98,  62  L. 

Ed.  304. 

Eberle  v.  Michigan,  232  U.  S.  700,  34  Sup.  Ct.  464. 
Purity  Extract,  etc.,  Co.  v.  Lynch,  226  U.  S.  192,  201, 

33  Sup.  Ct.  44,  57  L.  Ed.  184. 
Crowley  v.  Christensen,  137  U.  S.  86,  91,  77  Sup.  Ct. 

13,  9  Sup.  Ct.  6,  34  L.  Ed.  620. 
Kidd  v.  Pearson,  128  U.  S.  1,  32  L.  Ed.  346,  2  Interst. 

Com.  Rep.  232. 
Mugler  v.  Kansas,  123  U.  S.  623,  662,  8  Sup.  Ct.  273, 

31  L.  Ed.  205. 
Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  33,  24  L.  Ed. 

989. 

Bartemeyer  v.  Iowa,  18  Wall.  29,  21  L.  Ed.  929. 
Black  v.  Delaye,  193  Ala.  500,  68  So.  993,  L.  R.  A. 

1915E,  640. 

Fine  v.  Moran  (Fla.),  77  So.  533. 
Henderson  v.  Heyward,  109  Ga.  373,  34  S.  E.  590,  47 

L.  R.  A.  366,  77  Am.  St.  Rep.  384. 
Mack  v.  Westbrook,  148  Ga.  690,  98  S.  E.  339,  341. 
Fitch  v.  State,  102  Neb.  361,  167  N.  W.  417,  419. 
State  v.  Germain  (N.  D.),  170  N.  W.  121. 
State  v.  Tincher,  81  W.  Va.  441,  94  S.  E.  503. 
Stratford  v.  Seattle  Brewing,  etc.,  Co.,  94  Wash.  125, 

162  Pac.  31,  L.  R.  A.  1917C,  931n. 
Taylor  v.  Wildman  (la.),  145  N.  W.  449,  451. 
People  v.  Wheeler,  185  Mich.  164,  151  N.  W.  710. 
Ex  parte  Davis  (Tex.  Cr.  App.),  215  S.  W.  341. 

It  is  also  well  established  that,  when  a  state,  exerting  its 
recognized  authority,  undertakes  to  suppress  what  it  is  free 
to  regard  as  a  public  evil,  it  may  adopt  such  measures  hav- 
ing reasonable  relation  to  that  end  as  it  may  deem  necessary 
in  order  to  make  its  action  effective.  It  does  not  follow  that 
because  a  transaction  separately  considered,  is  innocuous, 


CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION    61 

it  may  not  be  included  in  a  prohibition  the  scope  of  which  is 
regarded  as  essential  in  the  legislative  judgment  to  accom- 
plish a  purpose  within  the  admitted  power  of  the  govern- 
ment. 

Booth  v.  Illinois,  184  U.  S.  425,  22  Sup.  Ct.  425,  46  L. 

Ed.  623. 
Otis  v.  Parker,  187  U.  S.  606,  23  Sup.  Ct.  168,  47  L. 

Ed.  323. 
Ah  Sin  v.  Wittman,  198  U.  S.  500,  504,  25  Sup.  Ct. 

756,49  L.  Ed.  1142,  1144. 
Silz  r.  Hesterburg,  211  U.  S.  31,  29  Sup.  Ct.  10,  53  L. 

Ed.  75. 
Murphy  v.  California,  225  U.  S.  623,  32  Sup.  Ct.  697, 

56  L.  Ed.  1229,  41  L.  R.  A.,  N.  S.,  153. 
Purity  Extract,  etc.,  Co.  v.  Lynch,  226  U.  S.  192,  33 

Sup.  Ct.  44,  57  L.  Ed.  184. 
See  also,  Crane  v.  Campbell,  245  U.  S.  304,  38  Sup.  Ct. 

98,  62  L.  Ed.  304. 
Rast  v.  Van  Deman,  etc.,  Co.,  140  U.  S.  342,  36  Sup.  Ct. 

370,  60  L.  Ed.  679,  L.  R.  A.  1917A,  421n,  Ann  Cas. 

1917B,  455. 

Mack  v.  Westbrook,  148  Ga.  690,  98  S.  E.  339,  341. 
Fitch  v.  State,  102  Neb.  361,  167  N.  W.  417. 
Thatcher  v.  Reno  Brewing  Co.  (Nev.),  178  Pac.  902. 
Johnson  v.  State,  75  Tex.  Cr.  App.  177,  171  S.  W.  211. 

The  power  of  the  states,  under  their  Constitutions  and 
under  the  federal  Constitution,  to  prohibit  the  manufacture 
and  sale  of  intoxicating  liquor  and  to  provide  such  means 
for  the  enforcement  of  prohibition  as  seems  expedient  to 
the  Legislature,  is  now  so  well  settled  that  it  is  no  longer  an 
open  question. 

Crane  v.  Campbell,  245  U.  S.  304,  38  Sup.  Ct.  98,  62 

L.  Ed.  304. 
Seaboard  Air-Line  Railway  v.  Ncrth  Carolina,  245  U. 

S.  298,  38  Sup.  Ct.  96,  62  L.  Ed.  299. 
Clark  Distilling  Co.  v.  Western  Maryland  R.  Co.,  242 

U.  S.  311.  37  Sup.  Ct.  180,  61  L.  Ed.  326,  L.  R.  A. 

1917B,  1218n,  Ann.  Cas.  1917B,  845. 
Giozza  i'.  Tierman,  148  U.  S.  657,  13  Sup.  Ct.  721,  37 

L.  Ed.  599. 


62     CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION 

Crowley  v.  Christensen,  137  U.  S.  86,  11  Sup.  Ct.  13,  34 

L.  Ed.  620. 
Mugler  v.  Kansas,  123  U.  S.  623,  8  Sup.  Ct.  273,  31  L. 

Ed.  205. 

Bartemeyer  v.  Iowa,  18  Wall.  129,  21  L.  Ed.  929. 
Black  v.  Delaye,  193  Ala.  500,  68  So.  993,  L.  R.  A. 

191 5E,  640. 
Delaney  v.  Plunkett,  146  Ga.  547,  91  S.  E.  561,  L.  R.  A. 

1917D,  926,  Ann.  Cas.  1917E,  685. 
Cureton  v.  State,  135  Ga.  660,  70  S.  E.  332,  49  L.  R. 

A.,  N.  S.,  182n. 
In  re  Crane,  27  Idaho  671,  151  Pac.  1006,  L.  R.  A. 

1918A,  942. 

Schmitt  v.  Cook  Brewing  Co.  (Ind.),  120  N.  E.  19,  22. 
State  v.  Kurent  (Kan.),  181  Pac.  603. 
State  v.  Macek,  104  Kan.  742,  180  Pac.  985. 
State  v.  Durein,  70  Kan.  1,  78  Pac.  152,  15  L.  R.  A., 

N.  S.,  908,  and  note. 
State  v.  Seaboard  Air-Line  R.  Co.,  169  N.  C.  295,  84 

S.  E.  283. 
State  v.  Fargo  Bottling  Works  Co.,  19  N.  D.  396,  124 

N.  W.  387,  26  1L.  R.  A.,  N.  S.,  872n. 
Motlow  v.  State,  125  Tenn.  547,  145  S.  W.  177,  L.  R 

A.   1916F,  177. 

Ex  parte  Fulton  (Tex.  Cr.  App.),  215  S.  W.  331. 
State  v.  Lovell  (1847),  47  Vt.  493. 
State  v.  Fabbri,  98  Wash.  207,  167  Pac.  133,  L.  R.  A. 

1918A,  416. 
State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 

1917B,  962n. 
State  v.  Davis,  77  W.  Va.  271,  87  S.  E.  262,  L.  R.  A. 

1917C,  639. 

And  a  state  act  making  it  unlawful  "to  have  or  keep" 
intoxicating  liquors  in  a  public  place  in  local  option  terri- 
tory, or  to  transport  liquor  therein,  does  not  deny  any  right 
guaranteed  by  the  federal  Constitution. 

Ex  parte  Fulton  (Tex.  Cr.  App.),  215  S.  W.  331. 

Prohibition  of  Possession  as  Ex  Post  Facto  Law  or 
Denial  of  Due  Process  of  Law. — A  state  statute  making 
it  unlawful  to  have  possession  of  intoxicating  liquor  for 


CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION    63 

sale,  in  force  from  and  after  April  1,  1913,  and  ratified 
March  3,  1913,  is  not  objectionable  as  ex  post  facto  when 
applied  to  the  finding  of  liquor  in  the  possession  of  accused 
April  17,  1913,  in  the  absence  of  anything  to  show  that  the 
liquor  was  acquired  prior  to  the  ratification  of  the  act. 
State  v.  Denton,  164  N.  C.  530,  80  S.  E.  401. 

And  the  application  of  Laws  Ga.  (Ex.  Sess.)  1915,  pt. 
1,  tit.  2,  §§  16  and  30,  making  it  illegal  to  have  in  possession 
more  than  one  gallon  of  vinous  liquor,  to  the  possession  of 
liquor  acquired  after  the  law  was  enacted,  but  before  it  be- 
came effective,  does  not  render  that  act  invalid. 

Barbour  v.  Georgia,  249  U.  S.  454,  39  S.  Ct.  316. 

Nor  does  it  render  that  act  invalid  as  depriving  of  prop- 
erty without  due  process  of  law. 

Barbour  v.  Georgia,  249  U.  S.  454,  39  S.  Ct.  316. 

Whether  the  prohibition  of  sale  may  be  constitutionally 
applied  to  liquor  acquired  before  the  enactment  of  the  stat- 
ute was  raised  in  Bartemeyer  v.  Iowa,  18  Wall.  129,  21  L. 
Ed.  929,  and  Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  33,  24 
L.  Ed.  989,  but  was  not  decided.  The  question  presented 
here,  however,  is  simpler. 

Barbour  v.  Georgia,  249  U.  S.  454,  39  S.  Ct.  316. 

Right  to  Define  as  Intoxicant  and  Otherwise  Pre- 
vent the  Traffic. — "To  prohibit  the  traffic  the  Legislature 
may  define  as  an  intoxicant  that  which  is  far  from  intoxi- 
cating, in  order  to  prevent  the  manufacture  and  sale  of  that 
which  is  intoxicating;  that  it  may  prevent  the  possession 
of  liquor;  that  it  may  provide  that  the  place  where  liquor 
is  kept  or  manufactured  may  be  declared  a  nuisance  and 
closed ;  that  it  may  designate  those  who  are  to  handle  and 
dispense  liquor  and  upon  what  terms ;  that  it  may  forbid 
advertisements  of  liquor;  that  it  may  provide  what  shall 
make  a  prima  facie  case  of  violation  of  the  law.  All  of 
these  provisions  are  properly  connected  with  the  purpose  of 
the  Legislature  to  prevent  the  traffic  in  intoxicating  liquor 
as  a  beverage  and  are  therefore  within  the  title  of  the  act." 
Schmitt  v.  Cook  Brewing  Co.  (Ind.),  120  N.  E.  19,  23. 

Nor  does  the  clause,  "or  any  alcoholic  compound  of  malt 


64    CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION 

or  liquors  whether  intended  for  beverage  purposes  or  not, 
but  which  can  be  diluted,  and  when  so  diluted  may  be  used 
as  a  beverage  and  will  produce  intoxication,"  etc.,  render 
the  act  obnoxious  to  the  paragraph  of  a  state  constitution 
which  declares  that  protection  to  person  and  property  is  the 
paramount  duty  of  government,  and  shall  be  impartial  and 
complete.  Nor  does  it  render  the  act  void  because  violative 
of  the  due  process  clause  of  that  constitution. 
Jackson  v.  State,  148  Ga.  351,  %  S.  E.  1001. 

While  total  prohibition  of  nonintoxicants  is  recognized 
as  a  valid  means  of  suppressing  the  liquor  traffic  (Purity 
Extract,  etc.,  Co.  v.  Lynch,  226  U.  S.  192,  33  Sup.  Ct.  44, 
57  L.  Ed.  184),  yet  it  is  a  means  which  ought  to  appear 
plainly  in  the  act.  Such  a  suppression  of  a  drink  confess- 
edly harmless  in  itself  cannot  be  implied  from  general  lan- 
guage prohibiting  intoxicating  liquors. 

Hoffmann    Brewing   Co.   v.    McElligott    (D.    C.),   259 
Fed.  321. 

Constitutional  Provision  Not  an  Implied  Limitation 
on  Legislative  Power. — A  constitutional  provision  au- 
thorizing the  prohibition  of  the  sale  of  intoxicating  liquor, 
is  not  an  implied  limitation  on  legislative  power,  and  the 
Legislature  has  not  only  the  authority,  but  must  pass  all 
laws  necessary  and  appropriate  to  prevent  illegal  sales. 

Longmire  v.  State,  75  Tex.  Cr.  App.  616,  171  S.  W. 
1165,  L.  R.  A.  1917A,  726. 

The  Virginia  Constitution,  1902,  §  62,  providing  that  the 
General  Assembly  shall  have  full  power  to  enact  local  op- 
tion laws,  gives  no  new  power  to  the  Legislature,  but  is 
simply  declaratory  of  the  existing  law,  although  it  places  no 
restriction  whatever  upon  the  legislative  power. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652. 
See  also,  Ex  parte  Fulton  (Tex.  Cr.  App.),  215  S.  W. 

331. 

Ex  parte  Davis  (Tex.  Cr.  App.),  215  S.  \V.  341. 
Gulf,  etc.,  R.  Co.  v.  State  (Tex.  Cr.  App.),  212  S.  W. 

845. 

United  States  v.  James   (D.  C.),  256  Fed.  102,  as  to 
effect  of  like  provision  of  Texas  Constitution. 


CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION     65 

Prohibiting  Importation. — The  state  has  plenary  power 
to  prohibit  the  importation  of  ardent  spirits  into  the  state 
for  any  purpose. 

Lucchesi  v.  Commonwealth,  122  Va.  872,  94  S.  E.  925. 

Prohibition  of  All  Shipments. — A  state  may,  consist- 
ently with  the  due  process  of  law  clause  of  U.  S.  Const. 
14th  Amend.,  forbid  all  shipments  of  intoxicating  liquor, 
whether  intended  for  personal  use  or  otherwise. 

Clark  Distilling  Co.  v.  Western  Maryland  R.  Co.,  242 
U.  S.  311,  37  Sup.  Ct.  180,  61  L.  Ed.  326,  L.  R.  A. 
1917B,  1218n,  Ann.  Cas.  1917B,  845. 

Right  to  Regulate  Other  Liquors,  Whether  Intoxi- 
cating or  Not,  in  Connection  with  Prohibited  Liquors. 

— The  right  of  the  Legislature  to  reasonably  prohibit  the 
manufacture,  sale,  or  other  disposition  of  other  liquors, 
whether  intoxicating  or  not,  in  connection  with  the  prohib- 
ited liquors  is  well  settled. 

Southern  Pac.  Co.  v.  Jensen,  244  U.  S.  205,  217,  37 

Sup.  Ct.  524,  61  L.  Ed.  1086,  Ann.  Cas.  1917E,  900. 
Wilson  v.  New,  243  U.  S.  332,  346,  37  Sup.  Ct.  298,  61 

L.  Ed.  755,  L.  R.  A.  1917E,  938. 
Clark  Distilling  Co.  v.  Western  Maryland  R.  Co.,  242 

U.  S.  311,  37  Sup.  Ct.  180,  61  L.  Ed.  326,  L.  R.  A. 

1917B,  1218n,  Ann.  Cas.  1917B,  845. 
Purity  Extract,  etc.,  Co.  v.  Lynch,  226  U.  S.  192,  33 

Sup.  Ct.  44,  57  L.  Ed.  184. 
Mugler  v.  Kansas,  123  U.  S.  623,  8  Sup.  Ct.  273,  31  L. 

'Ed.  205. 
Butterfield  v.  United   States,   154  C.   C.   A.  332,  241 

Fed.  556. 
Southern  Exp.  Co.  v.  Whittle,  194  Ala.  406,  423,  69  So. 

652,  L.  R.  A.  1916C.  278. 
Black  v.  Delaye,  193  Ala.  500,  520,  68  So.  993,  L.  R. 

A.  1915E,  640. 

Ex  parte  Woodward,  181  Ala.  97,  106,  61  So.  295. 
Marks  v.  State,  159  Ala.  71,  80,  48  So.  864,  133  Am.  St. 

Rep.  20. 

Lambie  v.  State.  151  Ala.  86,  91,  44  So.  51. 
Dinkins  v.  State,  149  Ala.  49,  43  So.  114. 

—5 


66     CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION 

State  v.  Mattox  Cigar,  etc.,  Co.  (Ala.),  77  So.  756. 
Louisville,  etc.,  R.  Co.  v.  State  (Ala.  App.),  76  So.  505, 

512. 

Black  v.  Southern  Exp.  Co.   (Ala.),  75  So.  343. 
Theatrical  Club  v.  State  (Ala.),  74  So.  969. 
State  v.  O'Connell,  99  Me.  61,  58  Atl.  59. 
State  v.  Jenkins,  64  N.  H.  375,  10  Atl.  699. 
Luther  v.  State,  83  Neb.  455,  120  N.  W.  125,  20  L.  R. 

A.,  N.  S.,  1146n. 
State  v.  York,  74  N.  H.  125,  127,  65  Atl.  685,  13  Ann. 

Cas.  116. 

Guilbert  v.  Kaufman,  68  Ohio  St.  635,  67  N.  E.  1062. 
Pennell  v.  State,  141  Wis.  35,  123  N.  W.  115. 

A  state  may,  in  the  exercise  of  its  police  power,  prohibit 
the  manufacture  and  sale  of  intoxicating  liquor,  and  to  the 
end  of  making  the  prohibition  effectual  may  include  in  the 
prohibition  nonintoxicating  malt  liquors. 

Purity  Extract,  etc.,  Co.  v.  Lynch,  226  U.  S.  192,  33 

Sup.  Ct.  44,  57  L.  Ed.  184. 
S.  C.,  100  Miss.  650,  56  So.  316. 
State  v.  George,  136  La.  906,  67  So.  953. 
Fine  v.  Moran  (Fla.),  77  So.  533. 
See  contra,  Elder  v.  State,  162  Ala.  41,  50  So.  370. 
See  also  post,  "Powers  to  Define  under  Sec.  1,  Title  II. 

"The  manufacture  and  sale  of  drinks  made  in  imitation 
of  or  intended  as  a  substitute  for  intoxicating  drinks  as 
specified  in  the  Act,  although  not  intoxicating  themselves, 
afford  a  cloak  for  clandestine  manufacture,  sale,  etc.,  of 
intoxicants — the  evil  which  the  legislation  was  designed  to 
prevent.  Under  such  circumstances,  the  power  to  prohibit 
the  manufacture,  sale,  etc.,  of  the  beverages  will  include  the 
power  also  to  prohibit  the  manufacture  and  sale  of  substi- 
tutes and  imitations." 

Purity  Extract,  etc.,  Co.  v.  Lynch,  226  U.  S.  192,  33 

Sup.  Ct.  44,  57  L.  Ed.  184. 
Kunsberg  v.  State,  147  Ga.  591,  95  S.  E.  12. 
See  also,  State  v.  George,  136  La.  906,  67  So.  953. 
Claunch  v.  State  (Tex.  Cr.  App.),  203  S.  W.  981. 
State  v.  Labrecque,  78  N.  H.  182,  97  Atl.  747. 


CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION    67 

Prohibition  of  Manufacture. — "There  is  no  difference 
in  constitutional  principle  between  the  prohibition  of  the 
sale  of  intoxicating  liquor  as  a  beverage  and  the  prohibition 
of  the  manufacture  in  order  to  stop  the  sale.  The  thing 
aimed  at  is  the  traffic  in  liquor  as  a  beverage.  If  the  peo- 
ple of  the  state,  in  order  to  stop  the  traffic  in  the  beverage, 
deem  it  necessary  to  stop  the  manufacture,  they  have  a 
right  to  do  this  as  far  as  any  limitations  in  our  Constitu- 
tion are  concerned." 

Schmitt  v.  Cook  Brewing  Co.  (Ind.),  120  N.  E.  19,  21. 

See  also,  United  States  v.  James  (D.  C.),  256  Fed.  102. 

A  state  law  prohibiting  manufacture  for  personal  use 
solely  does  not  violate  the  Fourteenth  Amendment  to  the 
Federal  Constitution,  or  the  provisions  of  State  Constitu- 
tions, declaring  that  no  person  shall  be  deprived  of  life, 
liberty,  or  property  without  due  process  of  law,  and  that  no 
person  shall  be  disturbed  in  his  private  affairs  or  his  home 
invaded  without  authority  of  law. 

State  v.  Fabbri,  98  Wash.  207,  167  Pac.  133. 

State  v.  Marastoni,  85  Ore.  37,  165  Pac.  1177. 

Prohibiting  Action  as  Agent  in  Purchase  or  Sale. — 

A  statute  prohibiting  any  person  from  acting  as  the  agent 
of  another  in  the  purchase  or  sale  of  intoxicating  liquors, 
does  not  abridge  any  privilege  or  immunity  guaranteed  to 
citizens  of  the  United  States  by  the  fourteenth  amendment 
to  the  federal  Constitution. 

State  v.  Germain  (N.  D.),  170  N.  W.  121. 

Under  Interstate  Commerce  Clause  of  Federal  Con- 
stitution.—Act  March  1,  1895,  c.  145,  28  Stat.  693,  for- 
bidding the  introduction  of  intoxicating  liquor  into  Indian 
Territory,  as  limited  to  interstate  commerce  by  the  Okla- 
homa Enabling  Act,  is  not  unconstitutional,  as  discriminat- 
ing between  the  States  in  respect  of  trade  and  commerce  in 
intoxicating  liquors. 

De  Moss  v.  United  States,  162  C.  C.  A.  259,  250  Fed.  87. 

Effect  of  Webb-Kenyon  Act. — The  Acts  35th  Leg.  of 
Texas  (Fourth  Called  Sess.)  c.  24,  §  3,  making  it  unlawful 
for  any  railroad  to  transport  within  or  import  into  the  state 


68    CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION 

intoxicants,  or  for  any  person  to  receive  the  same  or  to  de- 
liver the  same,  in  so  far  as  it  interferes  with  interstate  com- 
merce, is  made  valid  by  Webb-Kenyon  Act  (U.  S.  Comp.  St. 
845.) 

Gulf,  etc.,  R.  Co.  v.  State  (Tex.  Civ.  App.),  212  S.  W. 
854. 

For  other  cases  construing  Reed  Amendment,  the 
Webb-Kenyon  Act,  and  similar  Acts  of  Congress, 
see  post  under  Sec.  3,  where  transportation  of 
liquor  into  or  through  dry  territory  is  treated. 

Constitutionality  of  Reed  Amendment  and  Webb- 
Kenyon  Act. — ''Whatever  doubt  may  have  existed  as  to 
the  power  of  Congress  to  pass  the  Reed  Amendment  has 
been  finally  and  fully  set  at  rest  by  the  decision  of  the  Su- 
preme Court  in  the  case  of  Clark  Distilling  Co.  v.  Western 
Maryland  R.  Co.,  242  U.  S.  311,  325,  37  Sup.  Ct.  180,  61 
L.  Ed.  326,  L.  R.  A.  1917B,  1218n,  Ann.  Cas.  1917B,  845, 
followed  by  Seaboard  Air  Line  Railway  v.  North  Carolina, 
245  U.  S.  298,  303,  38  Sup.  Ct.  96,  62  L.  Ed.  299.  Though 
these  cases  are  specific  affirmations  of  the  validity  of  the 
Webb-Kenyon  Law  (Act  March  1,  1913,  c.  90,  37  Stat.  699 
[Comp.  St.  §  8739]),  they  as  certainly  establish  the  valid- 
ity of  the  Reed  Amendment,  because  they  concern,  not 
merely  a  specific  legislative  act,  but  the  principle  upon  which 
it  rests." 

United  States  v.  James  (D.  C.),  256  Fed.  102,  103. 

Conflicting  Laws   and  Constitutional  Provisions.— 

Congress  having  exercised  its  authority  in  a  matter  within 
its  control,  conflicting  state  laws  must  give  way. 

United  States  v.  Hill,  248  U.  S.  420,  39  S.  Ct.  143. 

The  provision  of  Florida  Laws  1918  (Sp.  Sess.)  c.  7736, 
making  it  unlawful  for  any  person  to  have  in  his  possession 
any  intoxicating  liquors,  except  that  any  person  over  21  may 
possess  for  his  personal  use  or  that  of  himself  and  family 
four  quarts  of  intoxicating  liquors  and  20  quarts  in  malt  liq- 
uors, does  not  violate  section  1,  Declaration  of  Rights,  pro- 
viding that  all  men  have  the  right  of  enjoying  life,  liberty, 
and  property;  nor  article  19  of  state  Constitution  as 


CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION    69 

amended  (see  Laws  1917,  vol.  1,  pp.  323,  324),  forbidding 
manufacture  and  sale  of  intoxicating  liquors. 
Marasso  v.  Van  Pelt  (Fla.),  81  So.  529. 

There  is  no  such  repugnance  or  doubt  as  to  the  meaning 
of  the  provisions  of  Texas  Acts  35th  Leg.  (Fourth  Called 
Sess.)  c.  24,  relating  to  transportation  and  receipt  of  intoxi- 
cating liquors  as  to  render  the  same  void. 

Gulf,  etc.,  R.  Co.  v.  State  (Tex.  Civ.  App.),  212  S.  W. 
845. 

Acts  35th  Leg.  (Fourth  Called  Sess.)  c.  24,  §  3,  making 
it  unlawful  for  any  railroad  to  transport  within  or  import 
into  the  state  intoxicants,  or  for  any  person  to  receive  the 
same  or  to  deliver  the  same,  is  not  in  conflict  with  any  ex- 
isting law. 

Gulf,  etc.,  R.  Co.  v.  State  (Tex.  Civ.  App.),  212  S.  W. 
845. 

Right  of  Cities  to  Prohibit  and  Regulate. — Even 
though  the  state  has  assumed  jurisdiction  of  the  subject  of 
intoxicating  liquors,  this  does  not  impliedly  remove  the  right 
of  cities  to  prohibit  the  sale  and  use  of  liquors  within  their 
limits. 

Zamata  v.  Browning  (Utah),  170  Pac.  1057. 

South  Carolina  Civ.  Code  1912,  §  2994,  giving  city  coun- 
cils authority  to  make  all  ordinances  necessary  for  preserv- 
ing health  and  good  government  within  the  city,  authorized 
an  ordinance  prohibiting  the  sale  of  cider  without  a  certifi- 
cate of  a  licensed  physician  that  it  is  to  be  used  for  medi- 
cinal purposes. 

Dillon  v.  Saleeby  (S.  C.),  81  S.  E.  153. 

When  authorized  by  its  charter,  a  municipal  corporation 
may  by  ordinance  duly  enacted  designate  the  localities  with- 
in its  corporate  limits  wherein  the  sale  of  intoxicating  liq- 
uors licensed  under  the  state  law  may  be  sold  and  make  it 
unlawful  to  sell  elsewhere  within  the  bounds  of  the  city. 
Terretto  v.  State  (Tex.  Cr.  App.),  215  S.  W.  329. 

When  authorized  by  its  charter,  a  municipal  corporation 
may  by  ordinance  duly  enacted  designate  the  localities  with- 


70     CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION 

in  its  corporate  limits  wherein  the  sale  of  intoxicating  liq- 
uors licensed  under  the  state  law  may  be  sold  and  make  it 
unlawful  to  sell  elsewhere  within  the  bounds  of  the  city, 
and  the  Constitution  does  not  restrict  the  power  of  the  Leg- 
islature to  prescribe  a  penalty  for  refusal  to  observe  such 
city  regulations. 

Terretto  v.  State  (Tex.  Cr.  App.),  215  S.  W.  329. 

Repeal  of  Statutes  and  Amendment  of  Constitu- 
tions.— The  Zone  Liquor  Law,  §  3,  was  not  repealed  or 
superseded  by  Acts  35th  Leg.  4th  Called  Sess.  1918,  c.  24, 
§  3,  nor  was  the  latter  act  repealed  or  superseded  by  chap- 
ter 31,  relating  to  sales  and  transportation  of  intoxicating 
liquor. 

Ex  parte  Roya  (Tex.  Cr.  App.),  215  S.  W.  322. 

Any  law  which  might  be  in  conflict  with  Texas  Acts  35th 
Leg.  (Fourth  Called  Sess.)  c.  24,  §  3,  as  to  transportation 
or  receipt  of  intoxicants,  would  be  repealed  thereby  by  im- 
plication, notwithstanding  other  sections  of  the  chapter  pro- 
vide that  all  other  laws  prohibiting  or  regulating  sale  of  in- 
toxicants shall  remain  in  full  force  and  effect. 

Gulf,  etc.,  R.  Co.  v.  State  (Tex.  Civ.  App.),  212  S.  W. 
845. 

Article  19  of  the  Florida  state  Constitution,  providing  for 
local  option  sales  of  intoxicating  liquors,  remained  in  force 
until  January  1,  1919,  when  it  was  superseded  by  the  amend- 
ment to  article  19  forbidding  the  manufacture,  sale,  barter, 
or  exchange  of  alcoholic  or  intoxicating  liquors  and  bev- 
erages in  this  state;  therefore  a  conviction  for  a  violation 
in  November  and  December,  1918,  of  the  local  option  pro- 
visions of  the  statute,  was  authorized. 

Correlis  v.  State  (Fla.),  82  So.  601. 

If  Liquor  Cannot  Be  Legally  Acquired  or  Procured, 
It  May  Not  Be  Legally  Used. — "It  necessarily  follows 
that  the  very  purpose  and  intent  of  the  act  was  to  preclude 
the  right  to  use  intoxicating  liquor  within  the  state  except 
for  the  specific  purposes  in  the  act  expressly  mentioned  and 
reserved.  If  liquor  can  not  be  legally  acquired  or  procured, 
it  may  not  be  legally  used.  While  the  law  is  somewhat 


CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION    71 

drastic  in  some  of  its  provisions — doubtless  it  was  so  in- 
tended to  be — yet  in  view  of  the  tendency  of  present  day 
legislative  enactments,  designed  to  protect  the  health, 
safety,  morals  and  promote  the  general  welfare  of  organized 
society,  it  is  not  the  province  of  the  courts  to  disregard  the 
purpose  and  intent  of  the  Legislature  so  long  as  the  consti- 
tutional rights  of  the  individual  have  not  been  invaded." 

State  v.  Certain  Intoxicating  Liquors  (Utah),  172  Pac. 
1050,  1052. 

Title  of  Act  and  Mode  of  Adoption. — Where  an  act 
of  the  legislature  has  for  its  subject  "traffic  in  intoxicating 
and  nonintoxicating  liquors,"  it  is  not  void  as  being  in  vio- 
lation of  the  constitutional  requirements  regarding  titles  to 
statutes  because  it  contains  provisions  prohibiting  the  manu- 
facture, sale,  or  keeping  for  sale  intoxicating  and  nonin- 
toxicating liquors,  as  that  term  is  defined  by  the  act. 

Fine  v.  Moran  (Fla.),  77  So.  533. 

A  clause  extending  the  prohibitory  provisions  of  the  act 
to  any  alcoholic  compound  or  malt  or  liquors,  whether  in- 
tended for  beverage  purposes  or  not,  but  which  can  be  di- 
luted, and  when  so  diluted  may  be  used  as  a  beverage  and 
will  produce  intoxication,  does  not  render  the  act  obnox- 
ious to  the  constitution,  which  inhibits  the  passage  of  any 
law  containing  matter  different  from  what  is  expressed  in 
the  title  thereof.  Nor  does  that  clause  render  the  act  vio- 
lative  of  the  constitutional  provision  embraced  in  the  para- 
graph of  the  constitution  referred  to,  which  declares  that  no 
law  shall  pass  which  refers  to  more  than  one  subject  mat- 
ter, although  the  law  also  contains  a  provision  extending  its 
prohibition  to  any  spirituous,  vinous  malt,  fermented  or  in- 
toxicating liquors,  or  any  of  the  prohibited  liquors  or  bev- 
erages, which  are  defined  in  an  act  entited:  "An  act  to 
make  clearer  and  more  certain  the  prohibition  laws." 

Jackson  v.  State,  148  Ga.  351,  96  S.  E.  1001. 

The  Virginia  Prohibition  Act,  §  39,  is  not  unconstitu- 
tional under  Const.  1902,  §  52  (Code  1904,  p.  ccxxi),  in 
that  the  body  of  the  act  makes  it  a  crime  merely  to  "trans- 
port" liquor,  and  the  title  of  the  act  relates  to  "transporta- 


72    CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION 

tion  for  sale,"  because  such  regulation  is  germane  to  and  in 
furtherance  of  the  "enforcement"  of  the  statute. 

Burton  v.  Commonwealth,  122  Va.  847,  94  S.  E.  923. 

See  also,  People  v.  Humphrey,  194  Mich.  10,  160  N. 
W.  445,  set  out  post  under  Sec.  8. 

As  to  validity  of  act  passed  at  special  session  of  state 
legislature,  under  form  of  proclamation  of  Govern- 
or calling  the  session,  and  its  conformity  thereto, 
see  Ex  parte  Fulton  (Tex.  Cr.  App.),  215  S.  W.  331. 

Ex  parte  Davis  (Tex.  Cr.  App.),  215  S.  W.  341. 

Gulf,  etc.,  Co.  v.  State  (Tex.  Civ.  App.),  212  S.  W.  845. 

Right  to  Complain. — A  statute,  relating  to  intoxicating 
liquors,  will  not  be  declared  invalid  in  certain  of  its  sections 
at  the  instance  of  one  convicted  under  another  section,  and 
not  prejudiced  by  its  enforcement,  nor  affected  by  it. 
Land  v.  State   (Fla.),  81   So.   159. 

Construction — Prohibited  Liquors  as  Subject  of 
Criminal  Offense. — An  interstate  shipment  of  whisky  had 
a  legal  value  in  Alabama,  and  contention  that  defendant 
cannot  be  convicted  of  breaking  into  freight  cars  where  liq- 
uor was  being  kept  or  under  larceny  count  will  be  overruled. 
Wiley  v.  State  (Ala.),  81  So.  343. 

Outlawed  whisky  may  be  the  subject  of  grand  larceny, 
where  taken  from  one  claiming  ownership,  although  the  law 
would  not  afford  any  one  damages  for  its  taking  or  give  any 
one  relief  looking  to  its  recovery. 

State  v.  Donovan  (Wash.),  183  Pac.  127. 

It  is  not  a  defense  to  a  prosecution  for  having  obtained 
money  under  the  false  pretense  that  defendant  had  deliv- 
ered whisky,  when  in  fact  the  bottles  delivered  contained 
only  colored  water,  that  the  prosecuting  witness  parted  with 
his  money  in  an  endeavor  to  get  defendant  to  violate  the  law 
by  selling  liquor. 

Hicks  v.  State  (Ark.),  215  S.  W.  685. 

Though  intoxicating  liquor  is  contraband  and  without 
monetary  value,  a  false  representation  concerning  it  can  be 


CONSTITUTIONALITY  AND  PRELIMINARY  CONSIDERATION    73 

made  the  basis  of  a  prosecution  for  obtaining  money  through 
a  false  pretense. 

Hicks  v.  State  (Ark.),  215  S.  W.  685. 

Prohibited  Liquors  as  Subject  of  Civil  Contract. — 

Contract  of  manufacturer,  on  selling  to  a  soft  drink  mer- 
chant a  new  beverage,  warranting  it  to  be  nonintoxicating, 
and  agreeing  to  indemnify  him  against  all  damages  for 
prosecution  for  violation  of  prohibition  law  by  reason  of 
retailing  it,  being  entered  into  and  acted  on  in  good  faith  by 
retailer,  is  not  against  public  policy. 

Owens  v.  Henderson  Brewing  Co.  (Ky.),  215  S.  W.  90. 

Despite  statute  prohibiting  interest  of  wholesale  liquor 
dealer  in  a  saloon  business,  such  a  dealer  or  brewer  may  be 
concerned  with  a  saloon  business  in  a  legitimate  financial 
transaction  by  way  of  loan,  mortgage,  and  lease;  there  be- 
ing no  direct  or  indirect  payment  of  the  license  fee  of  the 
retail  saloon  business. 

Greene  v.  Atwood  (Wash.),  180  Pac.  399. 

But  a  contract  made  outside  of  the  state  for  the  sale  of 
whisky  to  be  resold  by  the  purchaser  within  the  state,  con- 
trary to  the  law,  is  contrary  to  the  public  policy  of  the 
state,  and  will  not  be  enforced,  even  though  it  was  valid  in 
the  state  where  it  was  made. 

Bluthenthal  v.  Kennedy,  165  N.  C.  372,  81  S.  E.  337. 

And  where  defendant's  intestate,  either  as  agent  or  as  a 
principal,  acting  with  plaintiff,  sold  intoxicating  liquors  sup- 
plied by  plaintiff  in  violation  of  the  laws  of  a  state,  and 
collected  and  received  the  purchase  price  therefor,  plaintiff 
could  not  sue  for  the  balance  of  the  amount  so  collected, 
after  deducting  credits  due  the  intestate,  since  the  test  of 
recovery  in  such  cases  is  whether  there  is  a  legal  obligation 
in  favor  of  the  plaintiff  separate  from  the  illegal  transac- 
tion, and  requiring  no  aid  from  it,  and  the  obligation  of  the 
estate  could  not  be  separated  from  the  sales  by  the  intes- 
tate, the  debt  resting  upon  such  sales  and  the  account  aris- 
ing therefrom. 

Elder  Harrison  Co.  v.  Jervey,  97  S.  C.  185,  81  S.  E. 
501. 


74    CONSTITUTIONALITY  AND  PREUMINARY  CONSIDERATION 

But   where  part   of   money   loaned   by   wholesale   liquor 
dealer  or  brewer  to  a  saloon  business  is  illegally  applied  in 
payment  of  a  retal  liquor  license,  the  courts  will  recognize 
the  divisibility  of  the  loan  into  its  legal  and  illegal  parts. 
Greene  v.  Atwood  (Wash.),  180  Pac.  399. 

Construction  of  Similar  Statutes. — In  the  interpre- 
tation of  prohibition  statutes,  similar  to  those  of  other  ju- 
risdictions, they  may  reasonably  be  given  the  construction 
applied  by  the  courts  of  such  jurisdiction,  to  such  statutes 
previously  enacted. 

Brown  v.  State,  17  Ariz.  314,  152  Pac.  578. 

Liberal  Construction. 
See  post,  Sec.  3. 


TITLE  I— SECS.  1-7 

[NOTE.  As  to  decided  cases  applicable  to  this  title,  see 
post  under  Title  II,  where  the  corresponding  sub- 
jects are  treated.] 

Constitutionality  and  Validity  of  War- Time  Prohi- 
bition.— The  War-Time  Prohibition  Act  of  November  21, 
1918,  is  constitutional. 

United  States  v.  Minery  (D.  C.),  259  Fed.  707. 
United  States  v.  Ranier  Brewing  Co.  (D.  C.),  259  Fed. 
359. 

And  the  provision  of  Act  Nov.  21,  1918,  §  1,  prohibiting 
the  manufacture  of  beer,  wine,  or  other  intoxicating  malt 
or  vinous  liquors  for  beverage  purposes,  whether  construed 
to  prohibit  the  manufacture  of  any  beer  or  wine,  or  only 
such  as  is  intoxicating,  is  constitutional. 

Hoffmann  Brewing  Co.  v.  McElligott  (D.  C.),  259  Fed. 
321. 

The  statute  intended  to  conserve  food,  to  increase  the 
man  power  of  the  nation,  and  to  protect  the  organization  of 
the  army,  by  prohibiting  the  sale  of  beer  which  has  a  tend- 
ency to  intoxicate  to  such  an  extent  as  to  interfere  with  the 
morals,  the  physical  welfare,  or  the  good  order  of  the  com- 
munity. Whether  or  not  the  mere  sale  of  malt  beer,  even 
though  it  have  not  sufficient  alcohol  content  to  fully  intoxi- 
cate, is  of  itself  detrimental,  whether  the  sale  of  such  liquor 
(even  though  it  would  not  fully  intoxicate)  is  disadvanta- 
geous from  the  standpoint  of  the  conservation  of  food,  are 
things  with  which  the  court  has  nothing  to  do.  That  is  a 
question  for  calm  discretion  of  Congress,  and  it  is  evident 
that  Congress  intended  by  the  act  under  consideration  to 
prohibit  the  sale  of  such  beer  as  it  considered  detrimental. 
United  States  v.  Schmauder  (D.  C.),  258  Fed.  251. 

For   Congress   has   constitutional   power  to   prohibit  the 
manufacture  and  sale  of  intoxicating  liquors  during  war. 
United  States  v.  Baumgartner  (D.  C.),  259  Fed.  722. 


76  TITLE  I— Sees.  1-7  OF  ACT 

Act  Nov.  21,  1918 — Constitutionality — Power  to  En- 
act.— It  is  evident  if  Congress,  by  making  a  tremendous 
drain  upon  the  resources  of  the  country  for  immediate  war 
purposes,  should  thereby  make  it  necessary  to  regulate  the 
use  of  material  immediately  thereafter,  in  order  to  bring 
matters  back  to  a  normal  base,  the  laws  by  which  such  res- 
toration would  be  had  can  properly  be  made  a  part  of  the 
military  measures  which  must  be  adopted  in  order  to  carry 
on  the  war  and  are  therefore  justified  under  the  powers  of 
the  United  States  in  waging  war,  as  has  been  decided  in  the 
case  of  United  States  v.  Minery,  in  this  district,  in  an  opin- 
ion filed  upon  this  day.  259  Fed.  707. 

United  States  v.  Schmauder  (D.  C.),  258  Fed.  251. 

Does  Not  Infringe  Xth  Amendment. — War-Time  Pro- 
hibition Act  Nov.  21,  1918,  does  not  violate  the  Tenth 
Amendment  to  the  Federal  Constitution,  which  reserves 
to  the  states  powers  not  delegated  to  Congress. 

United  States  v.  Minery   (D.  C),  259  Fed.  707. 

Not  Invalidated  by  XVHIth  Amendment.— The  Eigh- 
teenth Amendment  to  the  federal  Constitution,  providing 
for  national  prohibition  in  1920,  does  not  invalidate  War- 
Time  Prohibition  Act  Nov.  21,  1918,  upon  ground  that  pro- 
hibition legislation  is  precluded  until  1920. 

United  States  v.  Minery  (D.  C.),  259  Fed.  707. 

War- Time  Prohibition — Duration  of  Act. — Act  Nov. 
21,  1918,  prohibiting  the  manufacture  and  sale  of  intoxi- 
cating liquors  "until  the  conclusion  of  the  present  war,"  is 
applicable  to  a  sale  on  July  8,  1919,  since  no  treaty  had 
then  been  signed  with  Austria,  and  the  army  had  not  been 
entirely  demobilized. 

United  States  v.  Minery  (D.  C.),  259  Fed.  707. 


TITLE  II— SEC.  1 
Definitions. 

Beverages  Included  under  Terms  "Liquor"  or  "Intoxicat- 
ing Liquor,"  etc. — Other  Definitions— Powers  of 
Agents  and  Assistants — Filing  Records. 

Alcohol,  Brandy,  etc. — Spirituous,  Vinous,  Malt  or  Fer- 
mented Liquor,  etc. 

Prohibition  of  Intoxicating  Beverages. 

Containing  One-Half  of  1  Per  Cent  or  More  of  Alcohol 
by  Volume  Fit  for  Use  for  Beverage  Purposes. 

Exceptions  as  to  Dealcoholized  Wine,  or  Any  Beverage  or 
Liquid  with  Less  Than  One -Half  of  One  Per  Cent  Al- 
cohol, etc. 

SEC.  1.  When  used  in  Title  II  and  Title  HI  of  this 
Act  (1)  the  word  "liquor"  or  the  phrase  "intoxicating 
liquor"  shall  be  construed  to  include  alcohol,  brandy, 
whisky,  rum,  gin,  beer,  ale,  porter,  and  wine,  and  in  ad- 
dition thereto  any  spirituous,  vinous,  malt,  or  fermented 
liquor,  liquids,  and  compounds,  whether  medicated, 
proprietary,  patented,  or  not,  and  by  whatever  name 
called,  containing  one-half  of  1  per  centum  or  more  of 
alcohol  by  volume  which  are  fit  for  use  for  beverage 
purposes:  Provided,  That  the  foregoing  definition  shall 
not  extend  to  dealcoholized  wine  nor  to  any  beverage  or 
liquid  produced  by  the  process  by  which  beer,  ale,  por- 
ter or  wine  is  produced,  if  it  contains  less  than  one-half 
of  1  per  centum  of  alcohol  by  volume,  and  is  made  as 
prescribed  in  section  37  of  this  title,  and  is  otherwise 
denominated  than  as  beer,  ale,  or  porter,  and  is  con- 
tained and  sold  in,  or  from,  such  sealed  and  labeled  bot- 


78  TITLE  II — SEC.  1  OF  ACT 

ties,  casks,  or  containers  as  the  commissioner  may  by 
regulation  prescribe. 

Person  Defined. 

(2)  The  word  "person"  shall  mean  and  include  nat- 
ural persons,  associations,  copartnerships,  and  corpora- 
tions. 

Commissioner. 

(3)  The  word  "commissioner"  shall  mean  Commis- 
sioner of  Internal  Revenue. 

Application. 

(4)  The  term    "application"  shall    mean  a    formal 
written   request  supported   by  a   verified  statement    of 
facts  showing  that  the  commissioner  may  grant  the  re- 
quest. 

Permit. 

(5)  The  term  "permit"  shall  mean  a  formal  written 
authorization  by  the  commissioner  setting  forth  specifi- 
cally therein  the  things  that  are  authorized. 

Bond. 

(6)  The  term  "bond"  shall  mean  an  obligation  au- 
thorized or  required  by  or  under  this  Act  or  any  regu- 
lation, executed  in  such  form  and  for  such  a  penal  sum 
as  may  be  required  by  a  court,  the  commissioner  or  pre- 
scribed by  regulation. 

Regulation. 

(7)  The  term  "regulation"  shall  mean  any  regula- 
tion prescribed  by  the  commissioner  with  the  approval 
of  the  Secretary    of  the  Treasury  for  carrying   out  the 


TITLE  II— SEC.  1  OF  ACT  79 

provisions  of  this  Act,  and  the  commissioner  is  author- 
ized to  make  such  regulations. 

Assistant  or  Agent  of  Commissioner. 

Any  act  authorized  to  be  done  by  the  commissioner 
may  be  performed  by  any  assistant  or  agent  designated 
by  him  for  that  purpose.  Records  required  to  be  filed 
with  the  commissioner  may  be  filed  with  an  assistant 
commissioner  or  other  person  designated  by  the  com- 
missioner to  recive  such  records. 

Dictionary  Definitions. — "  'Ardent  spirits'  and  'spirit- 
uous liquors'  are  terms  of  general  use,  and  each  has  a  well- 
defined,  well-understood  meaning.  In  Webster's  Interna- 
tional Dictionary  the  term  'ardent'  is  defined  as:  'Hot  or 
burning;  causing  a  sensation  of  burning;  fiery,  as  ardent 
spirits — that  is,  distilled  liquors.' 

"Century  Dictionary:  Ardent  spirits:  'Distilled  alco- 
holic liquors,  as  brandy,  whisky,  gin,  rum.' 

"Standard  Dictionary:  Ardent  spirits:  'Alcoholic  dis- 
tilled liquors.' 

"Worcester's  Dictionary:  Ardent  spirits:  'A  term  ap- 
plied to  liquors  obtained  by  distillation,  such  as  rum, 
whisky,  brandy,  and  gin.' 

"Black's  Law  Dictionary:  Ardent  spirits:  'Spirituous 
or  distilled  liquors.' 

"  'Spirituous  liquor  means  distilled  liquor.'  1  Woolen  & 
Thornton  on  the  Law  of  Intoxicating  Liquors,  §  7. 

"Spirituous:  'Containing  much  alcohol;  distilled,  whether 
pure  or  compound,  as  distinguished  from  fermented;  ar- 
dent; applied  to  a  liquor  for  drink.'  Century  Dictionary. 

"Spirituous  liquors:  'Any  intoxicating  liquor  produced 
by  distillation  or  by  rectifying,  compounding  or  otherwise 
treating  or  using  distilled  alcoholic  fluids  in  distinction  from 
fermented  or  brewed  intoxicating  beverages.'  Standard 
Dictionary. 

"Spirituous  liquors:  'These  are  inflammable  liquids  pro- 
duced by  distillation  and  forming  an  article  of  commerce/ 
Black's  Law  Dictionary;  Cyclopedic  Law  Dictionary. 


80  TITLE  II— SEC.  1  OF  ACT 

"Spirituous  liquor:  'Distilled  liquor.'  Anderson's  Law 
Dictionary. 

"The  term  'spirituous  liquor'  means  distilled  liquor. 
Black  on  Intoxicating  Liquors,  §  3. 

"  'Spirituous  liquor  is  that  which  is  in  whole  or  in  part 
composed  of  alcohol  extracted  by  distillation;  whisky, 
brandy,  and  rum  being  examples.'  15  R.  C.  L.  249. 

"In  Sarlls  v.  United  States,  152  U.  S.  570,  14  Sup.  Ct. 
720,  38  L.  Ed.  556,  the  Supreme  Court  of  the  United  States 
approved  the  definitions  as  given  by  Webster,  Worcester, 
and  Century  Dictionaries.     In  United  States  v.   Ellis    (D. 
C.),  51  Fed.  808,  the  court,  in  speaking  of  these  terms  used 
in  a  prohibition  statute,  said :     '  "Ardent"  and  "spirituous" 
are  used  indiscriminately  as  having  the  same  meaning.'  ' 
State   v.   Centennial   Brewing  Co.    (Mont.),   179   Pac. 
296,  297. 

Definition  and  Power  to  Define. — In  the  exercise  of 
the  police  power  the  legislature  may  conclusively  define  a 
beverage  as  intoxicating  liquor  whenever  that  course  has 
any  reasonable  relation  to  the  accomplishment  of  the  domi- 
nating purpose  of  the  act. 

State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 

191 7B,  962n. 
Schmitt  v.  Cook  Brewing  Co.  (Ind.),  120  N.  E.  19. 

And  so  the  statute  may  define  what  are  prohibited,  and 
what  are  not,  and  designate  them  by  general  or  special 
terms. 

Marks  v.  State,  159  Ala.  71,  48  So.  864. 

Innocuous  Beverages. — If  necessary  to  avoid  subter- 
fuge and  fraud,  beverages  which  are  in  themselves  innocu- 
ous may  be  included. 

State  v.  Centennial  Brewing  Co.  (Mont.),  179  Pac.  296. 

Nor  does  a  provision  that  "all  malt  or  brewed  drinks, 
whether  intoxicating  or  not,  shall  be  deemed  malt  liquors 
within  the  meaning  of  this  act,"  contravene  either  state  or 
federal  Constitution. 

Thatcher  v.  Reno  Brewing  Co.   (Nev.),  178  Pac.  902. 


TITLE  II— SEC.  1  OF  ACT  81 

See  also  ante,  "Constitutionality  and  Preliminary  Con- 
siderations." 

Properties  Immaterial. — If  it  clearly  appears  that  a 
given  article  is  within  the  scope  of  the  forbidden  enumera- 
tion, and  is  intoxicating,  its  properties  become  immaterial. 

Marks  v.  State,  159  Ala.  71,  48  So.  864. 

Percentage  of  Alcohol. — A  statute  prohibiting  all  dis- 
tilled liquors,  rectified  spirits,  vinous,  fermented,  brewed, 
and  malt  liquors  and  wines,  and  any  beverage,  by  whatever 
name  called,  containing  more  than  1  per  cent  of  alcohol  by 
volume  at  60  degrees  Fahrenheit,  includes  any  fermented 
liquor,  regardless  of  whether  such  beverage  is  in  fact  in- 
toxicating. 

State  v.  Labrecque,  78  N.  H.  182,  97  Atl.  747. 

Conclusive  Presumption. — All  liquors,  specifically  men- 
tioned in  a  statute  defining  intoxicating  liquors  are  conclu- 
sively presumed  to  be  intoxicating  liquors,  without  regard 
to  their  actual  intoxicating  properties. 

State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 
1917B,  962n. 

Ejusdem  Generis  Rule. — The  rule  of  ejusdem  generis 
has  no  application  to  the  statutory  definition  of  intoxicat- 
ing liquors. 

State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 
1917B,  962n. 

Alcoholic  Percentage — Construction.  —  The  phrase, 
"any  other  intoxicating  drink,  mixture  or  preparation  of  like 
nature,"  which  follows  the  specific  enumeration  of  certain 
named  liquors,  is  not  controlled  or  qualified  by  the  last 
clause  of  said  section  with  reference  to  beverages  contain- 
ing one-half  per  cent  alcohol  being  spirituous  liquors. 

Thatcher  v.  Reno  Brewing  Co.  (Nev.),  178  Pac.  902. 
Enumerated  Liquors  Not  Limited. — The  clause,  "ev- 

—6 


82  TITLE  II — SEC.  1  OF  ACT 

ery  other  liquor,"  after  specified  liquors  was  not  intended  to 
limit  or  qualify  the  enumerated  liquors. 

State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 
1917B,  962n. 

The  prohibition  of  ardent  spirits,  ale,  beer,  wine  or  in- 
toxicating liquor  or  liquors  of  whatever  kind  includes  all 
forms  of  beer,  whether  intoxicating  or  not,  since  the  words 
"intoxicating  liquor  or  liquors  of  whatever  kind"  do  not 
limit  the  specifically  prohibited  liquors  to  intoxicating 
forms,  but  those  enumerated  are  absolutely  prohibited  in 
any  form,  and  the  limitation  applies  only  to  liquors  not 
enumerated. 

Brown  v.  State,  17  Ariz.  314,  152  Pac.  578. 

The  phrase,  "any  other  intoxicating  drink,  mixture  or 
preparation  of  like  nature,"  which  follows  the  specific 
enumeration  of  certain  named  liquors  instead  of  limiting  the 
class  of  liquor  enumerated,  described  another  merely  by  their 
intoxicating  quality. 

Thatcher  v.  Reno  Brewing  Co.   (Nev.),  178  Pac.  902. 
See  also,   United  States  v.   Schmauder    (D.   C.),  258 
Fed.  251. 

"In  People  v.  Strickler,  25  Cal.  App.  60,  142  Pac.  1121, 
the  court  was  called  upon  to  construe  a  section  of  the  local 
option  law  which  reads  as  follows:  'The  term  "alcoholic 
liquors"  as  used  in  this  act  shall  include  spirituous,  vinous 
and  malt  liquors,  and  any  other  liquor  or  mixture  of  liq- 
uors which  contain  one  per  cent  by  volume,  or  more,  of 
alcohol,  and  which  is  not  so  mixed  with  other  drugs  as  to 
prevent  its  use  as  a  beverage.'  The  rule  of  the  last  ante- 
cedent was  disregarded,  and  it  was  held  that  the  clause, 
'which  contain  one  per  cent  by  volume,  or  more,  of  alcohol,' 
modifies  the  term  'spirituous,  vinous  and  malt  liquors,'  as 
well  as  the  terms  'liquor'  or  'mixture  of  liquors.'  In  State 
v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A.  1917B, 
962n,  the  Washington  Supreme  Court  construed  a  section 
of  the  prohibition  law  which  provides :  'The  phrase  "in- 
toxicating liquor,"  wherever  used  in  this  Act,  shall  be  held 
and  construed  to  include  whisky,  brandy,  gin,  rum,  wine, 
ale,  beer  and  any  spirituous,  vinous,  fermented  or  malt  liq- 


II— SEC.  1  OF  ACT  83 

uor,  and  every  other  liquor  or  liquid  containing  intoxicat- 
ing properties.'  The  doctrine  of  the  last  antecedent  was 
applied,  and  it  was  held  that  the  phrase  'containing  intoxi- 
cating properties'  modifies  the  terms  'other  liquor  or  liquid,' 
and  does  not  modify  any  of  the  other  preceding  terms.  The 
strained  construction  given  to  the  statute  considered  in  Ex 
parte  Hunnicutt,  7  Okl.  Cr.  213,  123  Pac.  179,  may  have 
been  justified  under  the  circumstances,  but  the  reasoning  by 
which  the  conclusion  was  reached  does  not  commend  it  to 
our  judgment.  None  of  the  decisions  is  particularly  per- 
suasive here." 

State  v.  Centennial  Brewing  Co.  (Mont.),  179  Pac.  296, 
299. 

Liquor  Synonymous  with  Liquid. — The  meaning  of 
the  word  "liquor"  is  not  restricted  to  alcoholic  or  intoxi- 
cating liquids,  but  the  word  is  to  be  given  its  original  mean- 
ing as  synonymous  or  inclusive  of  the  word  "liquid." 

State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 
1917B,  962n. 

Unspecified  Liquor  or  Liquors — Test  of  Unspecified 
Liquors. — The  test  to  be  applied  in  determining  whether  or 
not  the  sale  and  keeping  for  sale  of  liquors  other  than  those 
specifically  mentioned  in  the  statute  is  prohibited  is  this:  If 
the  liquor  in  question  be  of  such  a  kind  that  the  distinctive 
character  and  effect  of  intoxicating  liquor  be  absent,  it  is 
outside  the  statute;  if  the  distinctive  character  and  effect 
of  intoxicating  liquor  be  present,  it  ;s  Avithin  the  statute. 

State  .v.  Miller,  92  Kan.  994,  142  Pac.  979,  L.  R.  A. 
1917F,  238,  Ann.  Cas.  1916B,  365. 

"Liquor"— "Spirituous  Fluid"— "Intoxicating." — 
The  term  "liquor,"  in  its  limited  sense  and  in  its  more  com- 
mon application  implies  spirituous  fluids,  whether  fer- 
mented or  distilled,  such  as  brandy,  whisky,  gin,  beer,  and 
wine. 

Mullins  v.  Commonwealth,  115  Va.  945,  79  S.  E.  324. 

"  'Generally  the  word  "liquor"'  implies  intoxicating  liq- 
uor, and  therefore  proof  that  a  defendant  sold  "liquor"  is 


84  TITLE  II— SEC.  1  OF  ACT 

sufficient  to  show,  in  the  absence  of  adverse  testimony,  that 
he  sold  intoxicating  liquor.'  Carswell  v.  State,  7  Ga.  App. 
198,  66  S.  E.  488;  Howard  v.  State,  7  Ga.  App.  61,  65  S.  E. 
1076;  Lewis  v.  State,  6  Ga.  App.  779,  65  S.  E.  842;  Tomp- 
kins  i).  State,  2  Ga.  App.  639,  58  S.  E.  1111;  Wilburn  v. 
State,  8  Ga.  App.  28,  68  S.  E.  460." 

Smith  v.  State,  17  Ga.  App.  118,  86  S.  E.  283. 

Intoxicating  Decoctions. — The  term  liquor  or  liquors 
includes  all  kinds  of  intoxicating  decoctions,  whether  spirit- 
ous,  vinous,  malt,  or  alcoholic. 

Marks  w.  State,  159  Ala.  71,  48  So.  864. 

"Intoxicating  Liquor" — What  Is  and  What  Is  Not 
— Statutory  Signification. — The  words  "intoxicating  liq- 
uors," wherever  used  in  the  intoxicating  liquor  laws,  be- 
came impressed  with  the  signification  given  them  by  that 
statute. 

State  v.  Miller,  92  Kari.  994,  142  Pac.  979,  L.  R.  A. 
1917F,  238,  Ann.  Cas.  1916B,  365. 

"Intoxicant"  Defined. — "Any  liquor  intended  for  use 
as  a  beverage,  or  capable  of  being  used,  which  contains  al- 
cohol, either  obtained  by  fermentation  or  by  the  additional 
process  of  distillation,  in  such  proportion  as  it  will  produce 
intoxication  when  taken  in  such  quantities  as  may  practi- 
cally be  drunk,  is  an  intoxicant.  This  has  been  recognized 
by  the  authorities  and  elementary  writers  as  a  proper  defi- 
nition of  what  is  an  intoxicant." 

Weinberg  v.  State,  81  Tex.  Cr.  App.  306,  194  S.  W. 
1116. 

Under  the  law  of  some  states  the  test  is  whether  the  liq- 
uor, when  taken  in  reasonable  quantities,  will  intoxicate. 
Salvador  v.  State,  79  Tex.  Cr.  App.  343,  185  S.  W.  12. 

In  order  to  come  under  the  ban  of  some  state  laws,  liq- 
uor must  either  contain  more  than  one  half  of  1  per  cent  of 
alcohol,  or  a  sufficient  quantity  of  it  in  a  liquor  or  com- 
pound, capable  of  being  used  as  a  beverage  to  intoxicate  a 
human  being. 

Estes  v.  State  (Okla.  Cr.  App.),  166  Pac.  77. 


TITLE  II— SEC.  1  OF  ACT  85 

The  term  "intoxicating  liquor,"  as  used  in  War-Time  Pro- 
hibition Act  Nov.  21,  1918,  means  any  liquor,  intended  or 
capable  of  being  used  as  a  beverage,  containing  a  proportioo 
of  alcohol  which  will  produce  intoxication  when  the  bever- 
age is  taken  in  such  quantities  as  it  is  practically  possible 
for  a  man  to  drink. 

United  States  v.  Baumgartner  (D.  C),  259  Fed.  722. 

A  law  prohibiting  the  sale  of,  or  keeping  for  sale,  intox- 
icating liquors,  includes  intoxicating  liquors  of  every  kind 
and  character  which  are  now  in  use,  or  which  in  the  future 
may  come  into  use  as  a  beverage,  no  matter  by  what  name 
they  may  be  named  or  called,  and  no  matter  how  small  a 
percentage  of  alcohol  they  may  contain,  and  no  matter  what 
other  ingredients  may  be  in  them. 

McLean  v.  People,  —  Ala.  — ,  180  P.  676. 

"Intoxicating  Bitters." — Intoxicating  bitters  includes 
those  bitters,  beverages,  or  decoctions  in  which  the  distinc- 
tive character  and  effect  of  intoxicating  liquors  are  present, 
so  that  it  may  be  used  as  a  beverage  notwithstanding  the 
other  ingredients  it  may  contain ;  and  if  it  can  be  used  as  a 
beverage,  though  the  other  ingredients  are  medicinal  and 
predominate,  and  alcohol  is  used  to  preserve  these  medicinal 
ingredients  and  serve  as  a  vehicle  therefor,  then  it  may  or 
may  not  be  included,  depending  on  the  evidence  in  each 
particular  case,  it  being  without  the  province  of  any  court 
to  declare  as  a  matter  of  law  that  a  particular  bitters  or  bev- 
erage is  or  is  not  intoxicating,  unless  the  statute  or  law  so 
declares,  or  it  be  one  the  effect  of  which  every  one  is  pre- 
sumed to  know. 

Marks  v.  State,  159  Ala.  71,  48  So.  864. 

Whisky,  Porter  and  Ale. — \Yhisky,  porter,  and  ale  are 
taken  to  be  intoxicating  liquors. 

State  v.  Barr  (Vt.).  77  All.  914. 

State  v.  Killeen  (N.  H.),  107  Atl.  601. 

Coats  v.  State  (Tex.  Cr.  App.),  215  S.  W.  856. 

Landers  v.  State  (Tex.  Cr.  App.),  210  S.  W.  694. 

Jamaica  Ginger. — Jamaica  ginger,  containing  more  than 
1  per  cent  of  alcohol,  is  intoxicating  liquor. 

State  v.  Intoxicating  Liquors  and  Vessels   (Me.),  106 
Atl.  711. 


86  TITLE  II— SEC.  1  OF  ACT 

It  is  a  matter  of  common  knowledge  that  for  years  Ja- 
maica ginger,  whatever  its  merits  may  be,  has  been  used  as  a 
substitute  for  other  intoxicants. 

State  v.  Intoxicating  Liquors  and  Vessels   (Me.),  106 
Atl.  711. 

Jamaica  ginger  containing  92  per  cent  alcohol  and  kept 
for  sale  as  a  beverage  was  "intoxicating  liquor"  within  the 
meaning  of  Laws  1917,  c.  147,  §  19,  and  a  prosecution  could 
be  had  under  such  section,  notwithstanding  section  21,  re- 
lating to  Jamaica  ginger. 

State  v.  Agalos  (N.  H.),  107  Atl.  314. 

Peach  Brandy. — It  may  be  inferred  that  a  liquor  denom- 
inated by  the  seller  as  peach  brandy,  and  for  which  payment 
is  received  as  such,  is  brandy,  and  therefore  an  intoxicating 
liquor. 

Howard  v.  State,  7  Ga.  App.  61,  65  S.  E.  1076. 

Alcohol. — It  is  a  matter  of  common  knowledge  that  al- 
cohol is  an  intoxicant  and  an  intoxicating  liquor. 
State  v.  Klein  (la.),  174  N.  \V.  481. 
McLean  v.  People  (Colo.),  180  Pac.  676. 
State  v.  Nicolay  (Mo.  App.),  184  S.  W.  1183. 

Pure  alcohol  is  without  the  term  "spirituous  and  intoxi- 
cating" liquors. 

Marks  v.  State,  159  Ala.  71,  48  So.  864. 

And  a  sale  of  alcohol  as  a  beverage,  however,  diluted  or 
disguised,  violates  a  law  specifically  prohibiting  the  sale  of 
alcohol. 

Feagin  v.  Andalousia,  12  Ala.  App.  611,  67  So.  630. 

"Alcoholic  or  Spirituous." — "Alcoholic  means  contain- 
ing or  pertaining  to  alcohol,  which  is  a  volatile  organic 
body,  a  limpid  colorless  liquid,  hot  and  pungent  to  the  taste, 
having  a  slight,  but  not  offensive,  scent.  It  has  but  one 
source,  namely,  fermentation,  and  is  extracted  from  its  by- 
products by  distillation ;  its  purity  and  strength  depending  on 
the  degree  of  perfection  or  completeness  of  distillation. 
While  it  is  the  intoxicating  principle  of  all  intoxicating 


TITLE  II— SEC.  1  OF  ACT  87 

drinks,   within   the   meaning  of   ordinary   prohibition   stat- 
utes, it  is  rarely  in  its  pure  state  used  as  a  beverage." 
Marks  v.  State,  159  Ala.  71,  48  So.  864. 

The  phrase,  "alcoholic  or  spirituous  liquors,"  necessarily 
means  intoxicating  liquors. 

Marks  v.  State,  159  Ala.  71,  48  So.  864. 

Near  Beer. — But  the  expression,  "near  beer,"  does  not 
import  an  intoxicating  liquor. 

Stoner  v.  State,  5  Ga.  App.  716,  63  S.  E.  602. 
Campbell  v.  Thomasville,  6  Ga.  App.  212,  64  S.  E.  815. 
Abbott  v.  State,  11  Ga.  App.  43,  74  S.  E.  621. 

"Potability"  or  Beverage  Character. — "The  sale  of 
spirituous,  vinous,  fermented,  or  malt  liquor,  not  capable  of 
being  used  as  a  beverage,  is  not  prohibited.  The  word 
'beverage'  means  a  drink  or  liquor  for  drinking.  Century 
Dictionary.  Every  one  of  the  terms — 'spirituous  liquor,' 
'vinous  liquor,'  'fermented  or  malt  liquor' — has  a  well-un- 
derstood meaning.  Every  one  of  those  liquors  is  not  merely 
capable  of  being  used  as  a  beverage,  but  it  is  in  fact  a  bev- 
erage, and  it  is  a  contradiction  of  terms  to  speak  of  spirit- 
uous, vinous,  fermented,  or  malt  liquor,  not  capable  of  be- 
ing used  as  a  beverage." 

State  v.  Centennial  Brewing  Co.  (Mont.),  179  Pac.  296, 
297. 

Nonpotable  Intoxicant. — Liquor  which  will  not  intoxi- 
cate by  immoderate  use  because  one  using  it  "would  become 
sick  long  before  he  becomes  intoxicated"  is  not  "intoxicat- 
ing liquor." 

Geer  Drug  Co.  v.  Atlantic  Coast  Line  R.  Co.,  104  S. 
C.  207,  88  S.  E.  448,  Ann.  Cas.  191 7C,  908. 

"Still  Beer." — A  substance  made  of  corn  meal  and  mo- 
lasses, designed  to  be  used  for  distilling  whisky,  and  com- 
monly called  "still  beer,"  or  "beer,"  which  is  alcoholic,  and 
intoxicating  when  drunk  to  excess,  and  in  such  a  physical 
state  that  it  can  be  and  actually  is  drunk  as  a  beverage,  is  a 
"beverage,"  as  used  in  a  statute  making  it  an  offense  to  dis- 


88  TITLK  II— SEC.  1  OF  ACT 

till  or  manufacture  any  alcoholic  liquor  or  beverage,  any  part 
of  which  is  alcoholic. 

Patterson  v.  State  (Ga.  App.),  100  S.  E.  641. 

Beer,  and  Its  Varieties. — Judicial  notice  will  be  taken 
that  "beer"  without  any  qualifying  term  is  a  malt  liquor 
containing  sufficient  alcohol  to  produce  intoxication. 
Lyon  v.  City  Club,  83  S.  C.  509,  65  S.  E.  730. 

Mild  Beer. — Though  not  containing  sufficient  alcohol  to 
require  an  internal  revenue  license  for  its  sale,  beer  may  be 
intoxicating  within  the  prohibition  amendment. 
Hall  v.  State,  19  Ariz.  12,  165  Pac.  300. 

Under  the  internal  revenue  laws  and  all  standards  by 
which  Congress  could  have  viewed  the  matter,  beer  described 
in  an  information  as  a  malt  product,  commonly  known  as 
lager  beer,  and  containing  as  much  as  one-half  of  one  per 
cent  of  alcohol,  is  of  the  class  known  as  intoxicating  liquor, 
and  as  such  its  sale  is  prohibited. 

United  States  v.  Schmauder  (D.  C.),  258  Fed.  251. 

"Not  every  liquid  called  beer  is  judicially  known  to  be 
intoxicating.  Gripe  v.  State,  4  Ga.  App.  832,  62  S.  E.  567; 
Snider  v.  State,  81  Ga.  753,  7  S.  E.  613,  12  Am.  St.  Rep. 
350.  Some  beers  are  known  to  be  nonintoxicating.  In  or- 
der to  show  that  the  sale  of  a  liquid  denominated  as  beer  is 
unlawful  and  consequently  that  the  keeping  of  the  liquid  for 
sale  is  likewise  unlawful  it  must  be  shown  that  the  beer  in 
question  comes  within  one  of  those  classes  whose  sale  is 
regulated  by  law.  Persimmon,  locust,  corn,  and  other 
brewed  liquor  may  be  called  by  the  most  innocent  name  and 
yet  the  proof  may  show  that  the  name  is  but  a  disguise,  and 
that  the  sale  of  the  fluid  in  question  is  prohibited  by  law." 

Lumpkin  v.  Atlanta,  9  Ga.  App.  470,  71  S.  E.  755. 

Under  War  Prohibition  Act.— Congress  extended  at  the 
time  of  passing  this  law  to  prohibit  lager  beer  with  an 
amount  of  alcoholic  content  sufficient  to  make  it  taxable  by 
the  revenue  department,  sufficient  to  bring  it  within  the  gen- 
eral definition  of  lager  beer,  as  known  from  past  experience, 
and  sufficient  to  bring  the  act  within  the  prohibition  of  the 


TITLE  II— SEC.  1  OF  ACT  89 

Selective  Service  Law,  which  prohibited  the  sale  of-  "any  in- 
toxicating liquors  including  wine  and  beer." 

United  States  v.  Schmauder  (D.  C.),  258  Fed.  251. 

Act  Nov.  21,  1918,  providing  that  no  beer,  wine,  or  other 
intoxicating  liquors  shall  be  manufactured  or  sold  during 
continuance  of  the  war,  etc.,  refers  only  to  intoxicating  beer 
and  wine. 

United  States  v.  Baumgartner  (D.  C.),  259  Fed.  722. 

The  War-Time  Prohibition  Act  of  November  21,  1918, 
prevents  only  the  manufacture  and  sale  of  beer,  wine,  etc., 
which  is  in  fact  intoxicating. 

Hoffman  Brewing  Co.  v.  McElligott   (C.  C.  A.),  259 
Fed.  525. 

The  War-Time  Prohibition  Act  of  November  21,  1918, 
preventing  the  sale  of  beer,  wine,  and  other  intoxicating 
liquors,  etc.,  refers  only  to  beer  and  wine  which  is  in  fact 
intoxicating. 

United  States  v.  Ranier  Brewing  Co.  (D.  C.),  259  Fed. 
350. 

In  the  provision  of  Act  Nov.  21,  1918,  §  1,  that  "no  grains, 
cereals,  fruit  or  other  food  product  shall  be  used  in  the 
manufacture  or  production  of  beer,  wine  or  other  intoxi- 
cating malt  or  vinous  liquors  for  beverage  purposes,"  the 
words  "beer"  and  "wine"  are  qualified  by  "intoxicating,"  and 
the  act  does  not  prohibit  the  manufacture  of  beer  which  is 
not  in  fact  intoxicating. 

Hoffmann  Brewing  Co.  v.  McElligott  (D.  C.),  259  Fed. 
321. 

Act  Nov.  21,  1918. — "Congress  had  it  in  mind  to  say 
'beer  or  any  other  product  of  malt  of  an  intoxicating  na- 
ture.' The  thought  was  that  expressed  in  the  Selective  Serv- 
ice Law  (Act  May  18,  1917,  c.  15,  40  Stat.  76  [Comp.  St. 
1918,  §  2019a]),  which  says:  'Any  intoxicating  liquor,  in- 
cluding beer,  ale  or  wine.'  But  either  statement  would  sug- 
gest that  Congress  classified,  and  intended  to  classify,  beer 
as  intoxicating,  and  merely  made  sure  that  it  was  covered 
by  the  law  in  case  dispute  arose.  The  law  included  beer,  and 
snowed  that  Congress  understood  it  to  be  intoxicating." 
United  States  r.  Schmauder  (D.  C.),  258  Fed.  251. 


90  TITLE  II— SEC.  1  OF  ACT 

Beer. — It  is  apparent  that  the  intent  of  the  Congress  was 
to  prohibit  the  sale  of  those  malt  products  which  were  com- 
monly known  as  beer,  which  were  also  commonly  supposed 
to  be  intoxicating,  which  had  always  been  classified  as  in- 
toxicating liquor,  and  which  because  of  their  alcoholic  con- 
tent had  some  effect  upon  the  production  and  man  power  of 
the  nation,  while  at  the  same  time  using  in  their  manufac- 
ture some  of  the  food  products  of  the  nation,  which  were 
needed  for  the  purposes  of  the  war  and  for  the  purposes  of 
restoring  conditions  at  the  termination  of  hostilities,  so  far 
as  Congress  had  power  to  regulate  conditions  after  the  war 
as  a  part  of  its  military  operation  and  conduct. 

United  States  v.  Schmauder  (D.  C.),  258  Fed.  251. 

That  the  Treasury  Department  should  have  interpreted 
the  act  as  only  applying  to  what  it  considers  intoxicating 
beer  is  persuasive  and  entitled  to  great  weight. 

United  States  v.  Cerecedo  Hermanos  Y.  Compania,  209 

U.  S.  337,  339,  28  Sup.  Ct.  532,  52  L.  Ed.  821. 
Komada  &  Co.  v.  United  States,  215  U.  S.  392,  396,  30 

Sup.  Ct.  136,  54  L.  Ed.  249. 
Adams  Exp.  Co.  v.  New  York,  232  U.  S.  14,  30,  34  Sup. 

Ct.  203,  58  L.  Ed.  483. 
Hoffmann  Brewing  Co.  v.  McElligott  (D.  C.),  259  Fed. 

321. 

Mixtures. — Mixtures    of    intoxicating   liquors    retaining 
their  alcoholic  qualities,  which  will  intoxicate  and  may  be 
used  as  a  beverage  and  become  a  substitute  for  the  ordinary 
intoxicating  drinks  are  intoxicating  liquors. 
Roberts  v.  State  (Ga.  App.),  60  S.  E.  1082. 

"The  fact  that  ardent  spirits  are  mixed  with  other  in- 
gredients, and,  as  thus  compounded,  labeled  Jamaica  ginger 
and  sometimes  used  for  medicinal  purposes,  does  not 
change  the  situation,  for  as  we  said  in  Brown  v.  State,  17 
Ariz.  314,  152  Pac.  578:  'Of  course,  the  name  by  which  it 
was  called  cannot  affect  its  kind  or  quality.  It  is  the  stuff 
of  which  it  is  made,  and  not  its  name,  that  gives  it  place 
among  the  prohibited  liquors  named  in  the  Constitution.'  " 

Cooper  v.  State,  19  Ariz.  486,  172  Pac.  276. 


TITLE  II— SEC.  1  OF  ACT  91 

Substitutes. — A  beverage  containing  an  enzyme,  which 
is  an  unorganized  ferment,  and  containing  either  maltose  or 
glucose  or  a  substitute  therefor,  is  prohibited  as  a  device 
or  substitute. 

State  v.  Mattox  Cigar,  etc.,  Co.  (Ala.),  77  So.  755. 

Beer  Substitutes. — It  is  the  process  and  material,  and 
not  the  name  which  classifies  the  product;  and  so  a  liquor 
made  by  the  usual  process  of  making  beer,  is  beer,  regard- 
less of  its  name,  although  fermentation  is  arrested  to  re- 
duce the  percentage  of  alcohol  and  it  is  nonintoxicating. 

Brown  v.  State,  17  Ariz.  314,  152  Pac.  578. 

Beer  Characteristics. — A  liquor  that  foams  like  beer, 
smells,  looks,  and  tastes  like  it,  and  is  put  up  in  bottles  like 
it  and  has  a  name  suggesting  it,  is  a  "substitute  or  device" 
under  a  statute  prohibiting  any  device  or  substitute  for  any 
intoxicating  liquor. 

Dees  v.  State  (Ala.  App.),  75  So.  645. 

Near  Beer. — "Near  Beer"  is  a  beverage  intended  as  a 
substitute  for  beer,  and  is  a  malt  liquor. 

Howard  v.  Acme  Brewing  Co.,  143  Ga.  1,  83  S.  E.  1096, 
L.  R.  A.  1917A,  91. 

Whisky  Defined. — Whisky  is  alcohol,  diluted  with  wa- 
ter and  mixed  with  other  elements  or  ingredients. 

Marks  v.  State,  159  Ala.  71,  48  So.  864. 

"Cider"  Defined.— The  word  "cider"  includes  the 
pressed  juice  of  apples  whether  fermented  or  unfermented. 
The  terms  "sweet  cider"  and  "hard  cider"  are  in  popular 
use  to  distinguish  between  the  juice  of  the  apple  before  and 
after  fermentation.  "Hard  cider"  is  fermented  cider. 

People  v.  Emmons,  178  Mich.  126,  144  N.  W.  479,  Ann. 
Cas.  1915D,  425. 

"Vinous  Liquor"  Defined. — Vinous  liquor  means  liq- 
uor made  from  the  juice  of  grapes,  and  it  may  also  include 


92  TITLE  II— SEC.  1  OF  ACT 

wines  made  from  fruits  or  berries  by  process  of  fermenta- 
tion, by  addition  of  sugar  and  alcohol. 

Marks  v.  State,  159  Ala.  71,  48  So.  864. 

State  v.  Coverdale,  1  Boyce's  (24  Del.)  555,  77  Atl. 
754. 

Judicial  Notice  of  Percentage  of  Alcohol. — In  a  pros- 
ecution for  the  sale  of  wine  under  a  statute  which  defines 
alcoholic  liquors  as  including  vinous  liquors  which  contain 
more  than  1  per  cent  of  alcohol,  and  which  are  not  so  mixed 
with  other  products  as  to  prevent  their  use  as  a  beverage, 
the  court  will  take  judicial  notice  that  wine  is  a  drinkable 
vinous  liquor  containing  more  than  1  per  cent  of  alcohol. 
People  v.  Mueller,  168  Cal.  526,  143  Pac.  750. 

Spirituous  Liquor. — Spirituous  liquor  is  that  which  is 
in  whole  or  in  part  composed  of  alcohol,  extracted  by  dis- 
tillation, such  as  whisky,  brandy,  or  rum. 
Marks  v.  State,  159  Ala.  71,  48  So.  864. 

Intoxicating  Distinguished  from  Spirituous  Liquor. 

— Intoxicating  liquors  are  any  liquors  intended  for  use  as 
a  beverage,  or  capable  of  being  so  used,  which  contain  al- 
cohol, regardless  of  how  obtained,  in  such  per  cent  that 
they  will  produce  intoxication  when  imbibed  in  such  quan- 
tities as  may  practically  be  drunk;  but  the  term,  however, 
is  not  synonymous  with  spirituous  liquors,  since,  while  all 
spirituous  liquors  are  intoxicating,  all  intoxicating  liquors 
are  not  spirituous. 

Marks  v.  State,  159  Ala.  71,  48  So.  864. 

Whisky. — Any  and  all  kinds  of  whisky  are  included  in 
the  terms  spirituous  and  intoxicating  liquors. 

Donaldson  v.  State,  3  Ga.  App.  451,  60  S.  E.  115. 
Shaneyfelt  v.  State,  8  Ala.  App.  370,  62  So.  331. 

Malt  Liquor  Defined. — "Malt  liquor,  or  beer,  as  is  com- 
monly known,  is  a  brewed  liquor  made  of  grain,  especially 
barley,  flavored  with  hops,  and  is  a  liquor  which  has  under- 
gone fermentation,  and  contains  alcohol.  5  Cyc.  678." 

State  v.  Lynch,  5  Boyce's  (28  Del.)  569,  96  Atl.  32. 


TITLE  II— SEC.  1  OF  ACT  93 

The  words  "malt  liquor,"  in  the  law  are  construed  to 
mean  a  fermented  or  alcoholic  liquor  and  not  to  include  a 
liquor  containing  malt,  but  neither  fermented  nor  contain- 
ing alcohol. 

State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 
1917B,  962n. 

Malt  liquors  include  nonintoxicating,  as  well  as  intoxi- 
cating liquors. 

Commonwealth  v.  Goodwin,  109  Va.  828,  64  S.  E.  54. 
Bradley  v.  State,  3  Ala.  App.  212,  58  So.  95. 
State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 
1917B,  962n. 

A  beverage  containing  5.73  per  cent  malt  is  a  malt  liquor 
though  it  contains  no  alcohol,  preservatives,  or  saccharine, 
and  was  nonintoxicating. 

Purity  Extract,  etc.,  Co.  v.  Lynch,  100  Miss.  650,  56 
So.  316. 

The  phrase  "malt  liquors  and  liquor  or  liquid  *  *  *  which 
contains  as  much  as  two  per  centum  alcohol,"  includes  malt 
liquor  containing  less  than  two  per  centum  of  alcohol,  the 
words  "malt  liquor"  meaning  any  malt  beverage,  the  per- 
centage of  alcohol  being  immaterial. 

State  v.  Centennial  Brewing  Co.  (Mont.),  179  Pac.  296. 

But  under  a  statute  providing  that  the  term  alcoholic  liq- 
uors shall  include  spirituous,  vinous,  and  malt  liquors  and 
any  other  liquor  which  shall  contain  1  per  cent  or  more  of 
alcohol,  the  sale  of  malt  beverages  which  do  not  contain  1 
per  cent  of  alcohol  is  not  prohibited. 

People  v.  Strickler,  25  Cal.  App.  60,  142  Pac.  1121. 

Nonintoxicating  malt  liquor  is  a  fermented  malt  liquor 
containing  alcohol  in  quantities  insufficient  to  produce  in- 
toxication when  used  as  a  beverage. 

Claunch  v.  State  (Tex.  Cr.  App.),  203  S.  W.  891. 

Process. — Malt  liquors  are  the  product  of  a  process  by 
which  grain  is  steeped  in  water  to  the  point  of  germination, 
the  starch  being  thus  converted  into  saccharine  matter, 
which  is  kilm  dried  then  mixed  with  hops,  and  by  a  fur- 


94  TITLE  II— SEC.  1  OF  ACT 

ther  process  of  brewing  made  into  a  beverage;  porter,  ale, 
beer,  etc.,  being  embraced  within  the  expression. 
Marks  v.  State,  159  Ala.  71,  48  So.  864. 

Potentially  Alcoholic. — A  malt  beverage  of  such  com- 
position that  it  will  generate  alcohol  of  itself,  under  certain 
conditions,  is  potentially  a  malt  liquor. 

State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 
1917B,  962n. 


TITLE  II— SEC.  3 
Acts  Prohibited. 

"Manufacture"  —  "Sell"  —  "Barter"  —  "Transport"  — 
"Import"  -  "Export"  -  "Deliver"  -  -  "Furnish"  - 
"Possess"  -  Liberal  Construction — General  Excep- 
tions— Liquor  for  Nonbeverage  Purposes  and  Wine 
for  Sacramental  Purposes— Permits— Spirits  in  Bond 
—Warehouse  Receipts — Tax  Liability. 

SEC.  3.  No  person  shall  on  or  after  the  date  when  the 
eighteenth  amendment  to  the  Constitution  of  the  United 
States  goes  into  effect,  manufacture,  sell,  barter,  trans- 
port, import,  export,  deliver,  furnish,  or  possess  any  in- 
toxicating liquor  except  as  authorized  in  this  Act,  and 
all  the  provisions  of  this  Act  shall  be  liberally  con- 
strued to  the  end  that  the  use  of  intoxicating  liquor  as 
a  beverage  may  be  prevented. 

Liquor  for  nonbeverage  purposes  and  wine  for  sacra- 
mental purposes  may  be  manufactured,  purchased,  sold, 
bartered,  transported,  imported,  exported,  delivered,  fur- 
nished, and  possessed,  but  only  as  herein  provided,  and 
the  commissioner  may,  upon  application,  issue  permits 
therefor:  Provided,  That  nothing  in  this  Act  shall  pro- 
hibit the  purchase  and  sale  of  warehouse  receipts  cov- 
ering distilled  spirits  on  deposit  in  Government  bonded 
warehouses,  and  no  special  tax  liability  shall  attach  to 
the  business  of  purchasing  and  selling  such  warehouse 
receipts. 

Liberal  Construction,  Reason  and  Spirit. 

The  prohibition  laws  must  be  liberally  construed  to  ac- 
complish the  purposes  of  their  enactment,  which  is  to  sup- 
press the  evils  of  intemperance  and  secure  obedience  to,  and 
the  enforcement  of,  the  laws  of  the  state  for  the  suppres- 


96  TITLE  II— SEC.  3  OF  ACT 

sion  of  illegal  manufacture  of  and  traffic  in  prohibited  liq- 
uors, and  to  prevent  evasions  and  subterfuges  by  which  the 
law  may  be  violated. 

Carson  v.  State,  3  Ala.  App.  206,  58  So.  88. 

State  v.  Philips,  109  Miss.  22,  67  So.  651. 

The  end  sought  for  is  the  prevention  or  at  least  the  dimi- 
nution of  the  drinking  of  intoxicating  liquors  by  the  peo- 
ple of  the  state.  The  legislation  upon  the  subject,  including 
the  statute  in  question,  should  be  construed  to  further  that 
end,  so  far  as  the  language,  without  bending  either  way, 
fairly  allows. 

State  v.  Bass  Pub.  Co.,  104  Me.  288,  71  Atl.  894,  20 

L.  R.  A.,  N.  S.,  495. 

State   v.    Jones-Hansen-Cadillac   Co.    (Neb.),    172    N. 
W.  36. 

As  said  in  one  case :  "But,  as  we  have  attempted  to  show 
in  this  opinion,  we  are  perfectly  clear  that  the  Legislature 
in  enacting  the  prohibition  statute  was  aiming  to  prevent 
the  evil  of  intemperance  caused  by  the  use  of  intoxicating 
liquors  as  a  beverage.  To  accomplish  this  beneficent  pur- 
pose, the  law  should  receive  a  reasonable  construction, 
equally  removed  on  the  one  hand  from  a  harsh  literal  in- 
terpretation which  would  render  it  unpopular  and  difficult 
of  enforcement,  and,  on  the  other  hand,  from  a  latitude  that 
would  tend  to  fritter  away  its  beneficial  purpose  and  cause 
it  to  become  a  mere  bmtum  fulmen." 

Roberts  v.  State,  4  Ga.  App.  207,  60  S.  E.  1082. 

And  in  another:  "Incidentally  it  may  be  said  in  this 
connection,  that  while  the  statute,  of  which  this  section  is 
a  part,  prescribes  a  penalty  for  its  violation,  and  that  penal 
statutes  are,  as  a  general  rule,  strictly  construed,  it  has  been 
held  here  and  elsewhere  that  laws  in  regard  to  the  sale  of 
intoxicating  liquors  ought  to  be  so  construed  as  to  carry 
out  the  true  purpose  of  their  enactment.  State  v.  Walker, 
221  Mo.  511,  120  S.  W.  1198,  affirming  129  Mo.  App.  371, 
108  S.  E.  615.  And  in  accomplishing  this  purpose  they 
should  be  liberally  construed.  Seattle  v.  Foster,  47  Wash. 
172,  91  Pac.  642;  Cox  v.  Burnham,  120  la.  43,  94  N.  W. 
265;  People  v.  Craig.  128  App.  Div.  908,  112  N.  Y.  Supp. 
1142.  Probably  the  rule  in  regard  to  the  construction  of 


TITLE  II— SEC.  3  OF  ACT  97 

this  case  of  statute  is  best  stated  in  a  New  York  case 
plead  v.  Stratton,  87  N.  Y.  493,  41  Am.  Rep.  386)  in  which 
it  is  said:  "While  a  statute  of  this  character  should  not  be 
enlarged,  it  should  be  interpreted,  where  the  language  is 
clear  and  explicit,  according  to  its  true  intent  and  meaning, 
having  in  view  the  evil  to  be  remedied  and  the  object  to 
be  attained." 

State  v.  Missouri  Athletic  Club  (Mo.),  170  S.  W.  904, 
905. 

Statutory  Signification. — The  sentence,  "and  all  malt 
or  brewed  drinks,  whether  intoxicating  or  not,  shall  be 
deemed  malt  liquors  within  the  meaning  of  this  act,"  can- 
not be  adjudged  out  of  the  act,  or  restricted  or  enlarged  in 
its  plain  signification,  unless,  after  exhausting  every  legiti- 
mate method  of  construction,  it  is  found  irreconcilable  with 
the  scope  and  purpose  of  the  act  or  void  for  constitutional 
reasons. 

State  v.  Reno  Brewing  Co.  (Neb.),  178  Pac.  902. 

An  act  making  it  unlawful  for  any  railroad  to  transport 
within  or  import  into  the  state  intoxicants,  or  for  any  person 
to  receive  the  same  or  to  deliver  the  same,  is  not  indefinitely 
framed  or  of  such  doubtful  construction  that  it  cannot  be 
understood  from  the  language  in  which  it  is  expressed. 

Gulf.  etc..  R.  Co.  v.  State  (Tex.  Civ.  App.),  212  S.  W. 
845. 

Public  Policy. — In  determining  the  public  policy  of  a 
state  with  reference  to  guilt  in  question  of  the  sale  with  pur- 
chase of  intoxicating  liquor  the  court  must  accept  the  statute 
as  fixing  the  public  policy,  and  have  no  concern  with  the 
reasons  of  the  lawmakers  in  failing  to  condemn  the  buyer. 
Anderson  v.  Fant  (S.  C.),  79  S.  E.  640,  641. 

When  Strictly  Construed. — But  it  has  been  held  that 
the  Reed- Jones  Amendment.  §  5  (U.  S.  Comp.  St.  1918,  § 
8739a),  declaring  that  whoever  shall  cause  intoxicants  to  be 
transported  in  interstate  commerce  except  for  certain  pur- 
poses into  any  state  whose  laws  prohibit  the  sale  and  manu- 
facture of  such  liquors  shall  be  punished,  is  highly  penal  in 
its  nature,  therefore  to  be  strictly  construed,  so  that  a  case 
—7 


98  TITLE  II— SEC.  3  OF  ACT 

to  come  within  its  purview  must  come  both  within  the  spirit 
and  letter. 

Sickel  v.  Commonwealth  (Va.),  99  S.  E.  678. 

And  an  act  prohibiting  the  transportation  of  intoxicating 
liquor  for  another,  is  a  criminal  statute,  and  must  be  strictly 
construed,  so  that  all  persons  must  be  excluded  from  its 
operation  who  are  not  expressly  included  within  its  provi- 
sions. 

Edwards  v.  State  (Ark.),  213  S.  W.  11. 

Permit. — In    a    statute   making   it   unlawful    to    sell    or 

permit  to  be  sold  without  a  license  certain  specified  liquors, 

the  word  "permit"  must  be  construed  as  meaning  "assent," 

in  view  of  the  strict  construction  given  criminal  statutes. 

State  v.  Waxman  (N.  G.  Sup.),  107  Atl.  150. 

Prospective  Operation  of  Statute. — In  the  view  of 
the  North  Carolina  Revisal,  1905,  §§  2832,  5455,  5456,  de- 
fendant who  sold  spirituous  liquors  in  a  county  December 
20,  1918,  could  be  convicted  of  the  offense  as  a  misdemeanor 
under  the  act  previous  to  Public  Local  Laws  1919,  c.  2, 
ratified  January  23,  1919,  making  the  retailing  of  spirituous 
liquors  in  the  county  a  felony,  made  prospective  only  in  its 
operation  by  its  provision  that  it  should  take  effect  from  its 
ratification,  more  particularly  in  view  of  the  intention  of 
the  Legislature  as  shown  by  the  title  of  the  act. 
State  v.  Mull  (N.  C.),  101  S.  E.  89. 

Manufacture. 

Manufacture  "or"  Sale — Conjunctive. — "As  will  be 
noted  by  reference  to  the  Reed  Amendment,  it  is  applicable 
to  any  state  the  laws  of  which  prohibit  'the  manufacture 
or  sale  therein  of  intoxicating  liquors  for  beverage  pur- 
poses.' Thus  it  is  sufficient  if  either  the  manufacture  or 
the  sale  is  prohibited.  Attention  is  called  to  a  line  of  deci- 
sions in  which  the  disjunctive  'or'  is  sometimes  construed 
as  'and,'  but  such  a  construction  is  not  applicable  in  this 
case.  Congress  had  the  authority  to  prohibit  the  shipment 
of  intoxicating  liquors  into  states  which  prohibit  the  manu- 
facture of  liquors,  or  which  prohibit  the  sale  of  liquors, 


TITLE  II— SEC.  3  OF  ACT  99 

either  one  or  the  other,  or  both,  and  there  is  no  good  reason 
to  conclude  that  Congress  did  not  intend  exactly  what  it 
said." 

United  States  v.  Collins  (D.  C.),  254  Fed.  Rep.  869, 
870. 

Manufacture. — "Manufacture,"  as  used  in  the  statute, 
means  to  make,  irrespective  of  quantity  produced  or  use  to 
which  it  is  to  be  put. 

State  v.  Marastoni  (Ore.),  165  Pac.  1177. 

The  word  "manufacture"  means  the  process  of  making 
by  art,  or  reducing  materials  into  form  fit  for  use,  by  hand 
or  machinery. 

State  v.  Raven,  91  S.  C.  265,  74  S.  E.  500. 

One  who  converts  raw  material  out  of  which  alcoholic 
liquors  can  be  made  into  alcohol  is  guilty  of  "manufactur- 
ing" alcoholic  liquors. 

Patterson  v.  State  (Ark.),  215  S.  W.  629. 

Attempt  to  Manufacture. — Under  the  Alabama  Prohi- 
bition Law  of  1915  a  mere  ineffectual  attempt  to  manufac- 
ture whisky  was  not  an  offense. 

Cochran  v.  State  (Ala.  App.),  82  So.  560. 

For  Personal  Use  Only. — Under  a  law  providing  that 
it  shall  be  unlawful  for  any  person  to  manufacture,  sell, 
barter,  exchange,  give  away,  furnish,  or  otherwise  dispose 
of  any  intoxicating  liquors,  or  to  keep  any  intoxicating  liq- 
uor, with  intent  to  sell,  barter,  exchange,  give  away,  etc., 
one  who  manufactures  intoxicating  liquor  solely  for  his  own 
personal  use,  and  without  intent  to  sell,  is  guilty,  since  the 
words  "intent  to  sell,"  in  the  statute  refer  only  to  that  which 
immediately  precedes,  to  wit,  "keep  any  intoxicating  liquor." 
State  v.  Fabbri,  98  Wash.  207,  167  Pac.  133. 

Distillation. — To  run  beer  or  singlings  composed  of 
corn,  meal,  sugar  or  molasses,  and  water  through  the  proc- 
ess of  distillation  once  is  a  violation  of  the  manufacturing 
provision  of  the  statute. 

Lowery  v.  State,  135  Ark.  159,  203  S.  W.  838. 


100  TITLE  II— SEC.  3  OF  ACT 

Aiding  and  Abetting  Manufacture. — Under  North 
Carolina  Revisal  1905,  §  3269,  providing  that  on  trial  of  any 
indictment  the  prisoner  may  be  convicted  of  the  crime 
charged  or  of  a  less  degree  of  the  same  crime,  defendant 
could  be  convicted  of  a  violation  of  Pub.  Laws  1917,  c.  157, 
prohibiting  the  manufacture  of  liquor,  whether  he  was  a 
principal  in  the  first  degree  or  in  the  second  degree  as  an 
aider  and  abetter,  the  latter  being  but  a  lower  grade  of  the 
principal  offense. 

State  v.  Homer,  174  N.  C.  788,  94  S.  E.  291. 

One  who  fired  a  gun  in  the  air  when  he  saw  an  officer 
approaching  a  blockade  distillery  to  aid  and  abet  the  dis- 
tillers and  to  enable  them  to  escape  was  an  accessory  to  the 
distillers  and  was  equally  guilty  with  the  principals. 
State  r.  Killian  (N.  C.),  101  S.  E.  109. 

Participating  in  Manufacture. — Where  defendant  not 
only  permitted  the  illegal  business  of  manufacturing  liquor 
to  be  done  in  his  house,  but  furnished  the  still  and  the  place 
for  using  it,  he  was  a  participant  in  the  crime  of  manufac- 
turing liquor. 

State  v.  Jones,  174  N.  C.  709,  95  S.  E.  576. 

One  who  is  present  at  a  distillery  when  whisky  is  being 
manufactured  and  personally  assists  in  the  manufacture  of 
the  same  is  guilty  of  manufacturing  whisky,  and  it  is  imma- 
terial whether  or  not  he  owns  the  distillery,  and  whether  or 
not  he  is  hired  to  work  there. 

Thomas  v.  State  (Ga.  App.),  100  S.  E.  760. 

But  to  constitute  a  violation  of  the  law  prohibiting  the 
manufacture  of  liquor,  it  is  not  necessary  that  the  process 
of  manufacturing  should  be  complete,  and  hence  a  person 
letting  the  water  out  of  a  still  and  scraping  the  still  is  en- 
gaged in  the  manufacture  of  liquor  and  is  guilty  of  a  viola- 
tion. 

State  v.  Raven,  91  S.  C.  265,  74  S.  E.  500. 

"In  the  light  of  the  rule  that  in  misdemeanors  all  who 
aid  or  abet  are  principals,  one  who,  at  a  place  where  a  still 
is  being  unlawfully  operated,  participates  in  any  act  nec- 
essary or  usual  in  the  manufacture  of  whisky,  such  as  stir- 


II— SEC.  3  OF  ACT  101 

ring  the  meal,  keeping  up  the  fire,  or  carrying  water  to  be 
used  in  mixing  the  meal,  is  so  connected  with  the  manufac- 
ture prohibited  by  law  as  to  authorize  his  conviction  upon 
an  indictment  charging  him  with  manufacturing  liquor, 
when  it  appears  that  any  act  done  by  him  was  necessarily  a 
contribution  to  the  success  of  the  unlawful  undertaking." 
White  v.  State,  18  Ga.  App.  214,  89  S.  E.  175. 

Or  participates  by  such  acts  as  helping  barrel  the  liquor 
and  leveling  the  still  worm  when  it  is  about  to  get  out  of 
proper  adjustment. 

Strickland  v.  State,  9  Ga.  App.  201,  70  S.  E.  990. 

But  if  defendant  went  to  a  still  where  other  persons  had 
manufactured  liquor  or  had  been  frustrated  in  so  doing, 
merely  to  haul  away  the  remnants  and  without  intention  to 
take  part  in  the  manufacture  of  liquor,  and  hauled  away 
beer  as  an  act  disconnected  with  the  manufacture  of  liquor, 
he  did  not  violate  a  law  prohibiting  the  manufacture  of  liq- 
uor. 

State  v.  Homer,  174  N.  C.  788,  94  S.  E.  291. 

Wine  Making. — Extracting  the  juice  of  grapes  and  al- 
lowing it  to  ferment,  and  thereby  letting  it  become  intoxi- 
cating liquor,  is  "manufacturing"  intoxicating  liquor. 
State  v.  Fabbri,  98  Wash.  207,  167  Pac.  133. 

One  who  presses  juice  from  grapes,  puts  it  in  a  vat  and 
permits  it  to  ferment  by  natural  process,  with  intent  to  use 
part  of  it  in  the  state,  manufactures  wine  in  violation  of 
law. 

State  v.  Marastoni   (Ore.),  165  Pac.  1177. 

See  also  post,  under  Sec.  19. 

Sale. 

What  Constitutes. — "Where  one  person  delivers  to  an- 
other certain  intoxicating  liquors  in  exchange  and  consid- 
eration for  a  sum  of  money  then  and  there  paid,  the  trans- 
action constitutes  a  sale  of  intoxicating  liquors,  and  it  is 
immaterial  whether  the  purchaser  subsequently  delivers  a 
portion  of  such  liquors  to  other  persons  who  had  thereto- 
fore contributed  to  a  purse  with  which  such  liquors  were 


102  TITLE  II— SEC.  3  OF  ACT 

purchased,  where  it  appears  that  the  person  making  such  a 
sale  was  ignorant  of  the  fact  that  such  liquors  were  to  be 
subsequently  delivered  to  parties  other  than  the  one  pro- 
ducing and  paying  the  money." 

Darneal  v.  State  (Okla.  Cr.  App.),  171  Pac.  737. 

See  Deal  v.  State,  14  Ga.  App.  121,  80  S.  E.  537,  541. 

A  "sale"  is  a  contract  for  the  transfer  of  property  from 
one  person  to  another  for  a  valuable  consideration,  and  to 
constitute  a  sale  of  whisky  there  must  be  the  assent  of  two 
parties. 

Scroggins  v.  United  States  (C.  C.  A.),  255  Fed.  825, 

Where  a  witness  went  to  defendant,  and  paid  cash  for  a 
barrel  of  wine,  which  was  delivered  to  the  witness'  place  of 
business  on  the  same  day,  the  transaction  was  a  sale,  and 
not  a  contract  for  the  sale  of  the  liquor. 
D'Amico  v.  State  (Del.),  102  Atl.  78. 

"Delivery." — If  defendant  told  the  alleged  purchaser 
where  the  liquor  might  be  found,  and  he  found  it  at  such  a 
place  and  took  possession,  there  was  a  sufficient  delivery  to 
constitute  the  transaction  a  sale. 

State  v.  Sullivan,  97  Wash.  639,  166  Pac.  1123. 

Where  accused  took  money  from  another  undertaking  to 
procure  whisky  for  him,  and  gave  the  money  to  a  third  per- 
son who  advised  accused  he  put  some  whisky  under  a  cer- 
tain box,  of  which  accused  informed  the  purchaser,  this 
constituted  a  "delivery"  of  the  whisky  by  accused  to  the 
purchaser;  the  whisky  placed  under  the  box  being  under 
accused's  exclusive  control  until  surrendered  to  the  pur- 
chaser. 

State  v.  Elmore  (Mo.  App.),  189  S.  W.  612. 

Place  of  Delivery. — A  sale  of  intoxicating  liquor  oc- 
curs at  the  place  of  delivery,  where  the  seller  actually  parts 
with  the  property. 

Blackburn  v.  State,  79  Tex.  Cr.  App.  446,  185  S.  W. 
581. 

Where  the  seller  of  intoxicating  liquors  delivers  them  in 
person  or  by  his  agent  to  the  purchaser,  without  the  inter- 


TITLE  II— SEC.  3  OF  ACT  103 

vention  of  a  common  carrier,  the  place  of  delivery  is  the 
place  of  sale. 

Lochinar  v.  State,  111  Md.  660,  76  Atl.  586,  19  Ann. 
Cas.  579. 

Ownership  of  Liquor  Sold  Immaterial. — "The  state's 
witness  approached  the  defendant  and  told  him  that  he 
wanted  a  quart  of  liquor.  The  defendant  replied  that  he 
had  none  for  sale,  but  that  a  third  person  had  left  a  quart 
in  his  (defendant's)  house  for  which  he  (the  third  person) 
desired  a  named  amount  of  money.  The  witness  paid  the 
money  to  the  defendant,  and  went  and  got  the  liquor  from 
the  place  designated.  Held:  (1)  The  case  does  not  rest 
on  circumstantial  evidence  alone.  (2)  Under  the  doctrine 
that,  in  misdemeanors,  all  who  participate  are  principals,  it 
is  immaterial  whether  the  liquor  belonged  to  the  defendant 
or  not." 

Loeb  v.  State,  6  Ga.  App.  23,  64  S.  E.  338. 

Roberts  v.  State,  8  Ga.  App.  476,  69  S.  E.  585. 

Scott  v.  State,  3  Ala.  App.  142,  57  So.  413. 

Under  a  statute  prohibiting  any  person  from  selling  spir- 
itous  liquor  in  any  quantity,  a  servant  or  agent  may  be 
guilty  of  unlawfully  selling  liquor,  the  property  of  his  prin- 
cipal, though  the  agent  have  no  property  in  the  liquor  so 
sold. 

State  v.  Gross,  76  N.  H.  304,  82  Atl.  533. 
Lochinar  v.  State,  111  Md.  660,  76  Atl.  586,  19  Ann. 
Cas.  579. 

Defendant  who  at  the  request  of  one  who  had  ordered 
whisky  made  affidavit  that  it  was  his  and  was  not  intended 
for  any  illegal  purpose,  paying  the  notary  with  money  fur- 
nished by  the  party  ordering  the  whisky,  took  the  affidavit 
to  the  express  office,  signed  for  and  received  the  liquor  and 
delivered  it  to  the  party  who  had  ordered  it,  was  guilty  of 
a  sale. 

Coleman  v.  State,  74  Tex.  Cr.  App.  36,  166  S.  W.  164. 

Where  beer  is  illegally  sold,  it  is  immaterial  as  to  who  is 
the  proprietor  of  place  of  sale,  or  that  the  person  making 
sale  is  not  interested  therein. 

Files  v.  State  (Okla.  Cr.  App.),  182  Pac.  911. 


104  TITLE  II— SEC.  3  OF  ACT 

Place  of  Sale. — The  sale  of  liquor  is  made  at  the  place 
where  the  minds  of  the  parties  meet  and  where  the  purposes 
of  each  party  become  understood. 

Huddleston  v.  Commonwealth,  171  Ky.  310,  188  S.  W. 
398. 

Where  accused,  owning  whisky  which  was  either  in  the 
state  or  in  a  sister  state,  made  a  contract  of  sale,  received 
the  price,  and  through  an  express  company  delivered  the 
whisky  in  the  state,  there  was  an  illegal  sale  in  the  state. 

State  v.  Cardwell,  166  N.  C.  309,  81  S.  E.  628. 

Where  a  seller  in  one  state,  pursuant  to  a  written  order 
from  a  buyer  in  another  shipped  the  latter  two  carloads  of 
beer,  the  sale  took  place  before  arrival  of  the  beer  at  its 
destination  and  its  delivery  to  buyer. 

Monumental  Brewing  Co.  v.  Whitlock   (S.  C.),  97  S. 
E.  56. 

Where  a  brewing  company  located  in  Illinois  gave  to  the 
bankrupt  the  exclusive  right  to  sell  its  beer  at  wholesale,  the 
same  to  be  delivered  f.  o.  b.  at  Omaha,  Neb.,  the  sales  must 
be  deemed  to  have  occurred  in  Illinois,  where  the  brewing 
company  was  licensed,  so  the  company  was  entitled  to  have 
allowed  its  claim  against  the  bankrupt,  based  on  sales  made 
under  the  contract,  though  it  was  not  licensed  in  Nebraska 
to  sell  intoxicating  liquors. 

Belden  &  Co.  v.  Leisy  Brewing  Co.,  161  C.  C.  A.  420, 
249  Fed.  462. 

One  who  ordered  whisky  from  a  liquor  house  in  a  sister 
state  at  the  request  of  a  third  person  and  solely  for  his  ac- 
commodation was  not  guilty  of  illegally  selling  liquor  in  the 
county  of  delivery. 

State  v.  Cardwell,  166  N.  C.  309,  81  S.  E.  628. 

Shams  to  Evade  Law. — Where  the  ordering  of  the  liq- 
uor by  defendant  from  a  firm  outside  of  the  state,  and  a 
shipment  by  it  to  the  purchasers  in  local  option  territory 
were  shams,  defendant  was  guilty  of  selling. 

State  v.  Jamison  (Mo.  App.),  199  S.  W.  713. 


TITLE  II— SEC.  3  OF  ACT  105 

Contributors  to  Pool.— Where  accused  and  a  third  per- 
son contributed  to  a  pool  to  buy  whisky,  and  accused  took 
the  money  and  brought  a  bottle  of  whisky,  which  he  and 
the  third  person  consumed,  he  was  guilty  of  selling  liquor. 
Horton  v.  State,  105  Miss.  333,  62  So.  360. 

But  an  accused  who  ordered  a  keg  of  beer,  to  be  drunk 
by  a  number  of  persons,  including  himself,  the  expense  be- 
ing prorated  between  them,  was  not  guilty  of  an  unlawful 
sale  of  intoxicants ;  it  appearing  all  the  money  collected  was 
expended  in  the  purchase  of  the  beer  and  payment  for  icing 
and  transportation. 

Dantzler  v.  State,  KM  Miss.  233,  61  So.  305. 

Sales  with  Meals. — A  boarding  house  keeper,  who  as 
a  part  of  the  dinner,  serves  beer  or  wine  to  his  boarders 
who  pay  a  specified  sum  per  day  for  board,  is  guilty  of  sell- 
ing liquor. 

Skermetta  v.  State,  107  Miss.  429,  65  So.  502,  52  L.  R. 
A.,  N.  S.,  722n. 

Purchaser  Helping  Himself. — Where  an  accused  told 
a  person  desiring  whisky  that  he  had  some  in  his  trunk  and 
the  purchaser  paid  him  money  and  went  to  accused's  home, 
where  another  member  of  accused's  family  showed  him  the 
trunk  containing  the  whisky  from  which  he  took  it,  the  ac- 
cused is  guilty  of  a  sale. 

Whitten  v.  State,  75  Tex.  Cr.  App.  225,  170  S.  W.  718. 

Devices  Representing  Money. — Where  a  person  pur- 
chases from  one  person  ticket  or  other  such  device  to  be 
punched  or  exchanged  for  intoxicating  liquors,  and  another 
person,  having  charge  of  such  liquors  recognizes  the  pur- 
chasing value  of  such  ticket  and  exchanges  liquors  therefor 
by  taking  up  the  ticket  or  punching  it,  the  transaction  is  a 
sale,  and  both  the  person  selling  the  ticket  and  the  person 
dispensing  the  liquors  are  equally  guilty. 

State  v.  Zehnder,  182  Mo.  App.  161,  168  S.  W.  661. 

Sale  by  Coupons. — W'here  a  number  of  persons  each 
contribute  money  to  an  agent,  who  purchases  a  stock  of 
intoxicating  liquors  and  thereafter  dispenses,  upon  the  or- 


106  TITLE  II— SEC.  3  OF  ACT 

der  of  one  of  such  persons  a  quantity  of  the  liquor  in  ex- 
change for  a  book  of  coupons  which  had  been  purchased, 
either  by  such  person  or  by  the  person  to  whom  the  liquor 
was  delivered,  the  transaction  is  a  sale  in  violation  of  the 
prohibition  law,  notwithstanding  the  persons  for  whose  ben- 
efit the  liquor  was  purchased  composed  a  bona  fide  club, 
organized  for  social  and  intellectual  welfare,  and  the  use  of 
the  liquor  was  only  an  incident  to  the  main  purpose  of  the 
club  and  although  no  profit  is  made  on  the  sale.  And  this 
is  true  whether  the  persons  have  become  incorporated  as  a 
social  club  or  whether  they  constitute  a  voluntary  associa- 
tion of  persons  for  mutual  pleasure  and  benefit. 
Deal  v.  State,  14  Ga.  App.  121,  80  S.  E.  537. 

Sale  on  Credit. — The  fact  that  a  sale  of  liquor  was  void 
because  on  credit,  does  not  exempt  the  seller  from  criminal 
liability  where  sale  was  illegal. 

State  v.  Yocum  (Mo.  App.),  205  S.  W.  232. 

"A  sale  on  credit  is  a  complete  sale.  Therefore  a  sale  of 
whisky,  whether  cash  or  on  credit  or  whether  subsequently 
paid  for  or  not,  constitutes  a  violation  of  law." 

Lupo  v.  State,  118  Ga.  759,  45  S.  E.  602. 

Cook  v.  State,  124  Ga.  653,  53  S.  E.  104. 

Finch  v.  State,  6  Ga.  App.  338,  64  S.  E.  1007. 

Single  Sale  as  "Engaging  in  Business." — A  statute 
providing  that  "retail  dealers  of  *  *  *  intoxicating  liq- 
uors *  *  *  shall  be  *  *  *  deemed  to  include  all  per- 
sons who  sell  any  such  liquors  by  the  drink  or  by  the  bottle," 
and  that  "each  violation  *  *  *  shall  be  construed  to  con- 
stitute a  separate  and  complete  offense,"  was  intended  to 
make  a  single  sale  constitute  "engaging  in  business." 
State  v.  Hays,  38  S.  D.  546,  162  N.  W.  311. 

"Bootlegger"  Defined. — In  prohibition  territory  a 
"bootlegger"  means  a  seller  of  whisky. 

Medlock  v.  State,  79  Tex.  Cr.  App.  322,  185  S.  W.  566. 

"Under  section  10144,  Complied  Laws  of   1913    (North 
Dakota),    which   provides    that   'the   crime   of    bootlegging 
*     is  committed  by  any  person  who  sells     *     * 


TITLE  II— SEC.  3  OF  ACT  107 

intoxicating  liquors     *  *     in  the  buildings  of  any  per- 

son, *  *  *  without  the  permission  of  the  owner,  or  of 
the  person  entitled  to  the  possession  of  such  *  *  *  build- 
ings,' no  such  ownership  or  right  of  possession  exists  in 
one  who  merely  has  an  agreement  with  a  livery  stable  keeper 
that  he  may  keep  a  horse  in  a  barn  which  may  be  rented  out, 
and,  in  lieu  of  charging  for  the  stabling  and  hay,  the  liv- 
ery stable  owner  may  keep  one-half  of  the  proceeds  of  such 
renting,  the  owner  of  such  horse  being  held  to  be  a  licensee 
merely." 

State  v.  Stanley,  38  N.  D.  311,  164  N.  W.  702. 

"Blind  Tiger"  Construed. — "A  blind  tiger  is  a  place 
where  intoxicants  are  sold  on  the  sly  and  contrary  to  the 
law."  Standard  Dictionary  Words  and  Phrases. 

Ruston  v.  Fountain,  118  La.  53,  42  So.  644. 

Shreveport  v.  Maroun,  134  La.  490,  64  So.  388. 

"Barroom"  Construed. — Under  a  law  forbidding  the 
sale  of  intoxicating  liquors  in  less  quantities  than  one-half 
pint  and  the  consumption  of  such  liquors  on  premises  where 
sold,  a  barroom  is  such  place,  and  the  operation  of  barrooms 
is  prohibited. 

Christopher  v.  Charles  Blum  Co.   (Fla.),  82  So.  765. 

Sale  to  "Intoxicated"  Person. — The  word  "intoxi- 
cated" in  an  indictment  charging  a  violation,  a  law,  provid- 
ing that  no  person  shall  knowingly  sell  intoxicating  liquor  to 
any  intoxicated  person,  means  a  materially  changed  condi- 
tion produced  by  the  immoderate  or  excessive  use  of  intoxi- 
cants, as  contrasted  with  normal  condition  and  conduct 

O'Donnell  v.  Commonwealth,  108  Va.  882,  62  S.  E.  373. 

Liability  for  Sale  by  Agent. — Where  intoxicants  be- 
longing to  the  master  are  sold  illegally  by  the  servant  with 
the  master's  knowledge  or  consent,  the  master  is  liable  as 
if  he  made  the  sale  himself. 

Rash  v.  State,  13  Ala.  App.  262,  69  So.  239. 

Commonwealth  r.  Stone  (Ky.),  176  S.  W.  1138. 

Clerk. — Where  a  clerk,  acting  as  agent  for  accused,  sells 
spirituous  liquor  with  the  authority  of  or  consent  or  under 


108  TITLE  II— SEC.  3  OF  ACT 

the  direction  of  the  accused,  his  act  is  the  act  of  the  accused, 
and  the  accused  is  as  criminally  liable  as  though  he  himself 
made  the  sale. 

State  v.  Hastings,  2  Boyce  (Del.)  482,  81  Atl.  403. 

Express  or  Implied  Authority. — The  proprietor  of  a 
soft  drink  place  was  not  liable  for  the  unlawful  sale  of  in- 
toxicating liquors  by  his  employee,  although  committed  in 
his  place  of  business,  unless  such  unlawful  act  was  directed 
or  knowingly  assented  to,  acquiesced  in,  or  permitted  by  the 
employer. 

Elliott  v.  State,  19  Ariz.  1,  164  Pac.  1179. 

"The  fact  alone  that  appellant  was  engaged  in  selling  beer 
at  wholesale  from  the  stock  there  stored  is  not  enough  to 
support  a  finding  that  he  had  possession  of  the  stock,  or 
that  he  had  the  control,  management,  or  supervision  of  the 
same,  or  that  he  was  keeping  or  operating  a  place  where  in- 
toxicating liquor  was  being  sold,  bartered,  or  given  away  in 
violation  of  law.  [4]  It  is  clear  that,  unless  appellant  oc- 
cupied the  position  of  owner  or  manager  of  the  business,  or 
one  having  authority  to  control  the  doings  in  and  about  the 
place,  he  cannot  be  held  amenable  for  another's  acts,  al- 
though he  may  have  known  of  the  illegal  sales." 

Boos  v.  State,  181  Ind.  562,  105  N.  E.  117. 

Walters  v.  State,  174  Ind.  545,  92  N.  E.  537. 

Gable  v.  State  (Ind.),  121  N.  E.  113. 

To  "permit  the  unlawful  use  of  intoxicating  liquor"  by 
the  proprietor  of  a  business  implies  his  knowledge  and  con- 
sent and  acquiescence. 

Elliott  v.  State,  19  Ariz.  1,  164  Pac.  1179. 

Scope  of  Authority. — Where  the  attempt  is  made  to 
convict  a  person  and  to  hold  him  criminally  responsible  for 
the  acts  of  his  employee,  it  must  be  clearly  shown  that  such 
act  was  reasonably  within  the  scope  of  the  agent's  employ- 
ment, or  was  an  act  done  within  the  course  of  the  princi- 
pal's business.  One  employed  to  do  the  ordinary  work  in 
and  around  a  feed  and  wagon  yard  is  not  ordinarily  em- 
ployed, nor  is  it  within  the  scope  of  the  employer's  business, 
to  sell  whisky  in  such  yard,  and  the  employer  of  such  per- 


TITLE  II— SEC.  3  OP  ACT  109 

son  would  not  be  criminally  responsible  for  the  acts  of  such 
employee  in  selling  whisky  in  said  yard,  unless  he  was  then 
engaged  in  such  unlawful  business  at  that  place,  or  had  hired 
such  employee  to  sell  whisky  in  addition  to  his  general  du- 
ties as  helper  in  the  feed  and  wagon  yard. 

Simpson  v.  State  (Okla.  Cr.  App.),  173  Pac.  529. 

Liability  for  Sale  to  Agent. — If  one  desiring  intoxicat- 
ing liquor  gave  money  to  another,  who  gave  it  to  defendant, 
and  defendant  bought  liquor,  and  gave  it  to  person  who 
furnished  money,  it  was  sale  by  defendant  within  contem- 
plation of  local  option  law. 

Lopez  v.  State  (Tex.  Cr.  App.),  208  S.  W.  167. 

Presumption  of  Agency. — Agency    may    be    presumed 
from  the  conduct  of  the  parties,  and  may  be  implied  from  a 
single  transaction,  and  need  not  be  proved  as  an  independ- 
ent fact,  but  may  be  inferred  from  a  variety  of  facts. 
State  v.  Legendre,  89  Vt.  526,  96  Atl.  9. 

And  the  authority  of  an  agent  may  be  by  parol  and  col- 
lected from  the  circumstances. 

State  v.  Legendre,  89  Vt.  526,  96  Atl.  9. 

Agency  a  Subterfuge. — Evidence  that  defendant  told  a 
witness  that  he  had  no  whisky,  but  pointed  out  a  negro  from 
whom  he  thought  it  could  be  obtained,  and  that  witness  gave 
defendant  money  to  obtain  whisky  from  negro,  and  defend- 
ant returned,  told  witness  that  whisky  could  be  found  in  a 
certain  place  where  witness  found  it,  authorized  an  infer- 
ence that  defense  of  agency  for  purchaser  was  a  subterfuge 
and  justified  conviction  of  selling  intoxicating  liquors. 
Bragg  v.  State  (Ga.  App.),  99  S.  E.  310. 

Purchase  for  Resale  at  Profit,  Not  as  Agent. — Where 
accused  asked  the  witness  whether  he  desired  whisky,  and- 
being  answered  in  the  affirmative,  informed  the  witness  that 
he  would  charge  him  a  quarter  a  quart  more  than  it  cost 
in  another  town,  and  being  given  the  money  shortly  returned, 
saying  that  he  had  procured  the  whisky  from  a  third  per- 
son, accused  was  not  the  agent  of  the  witness,  for,  had  he 
been  an  agent,  he  would  not  have  been  entitled  to  make  the 


110  TITLE  II— SEC.  3  OF  ACT 

profits,  and,  it  appearing  that  he  bought  the  whisky  at  one 
price  and  resold  it  at  another,  the  sale  took  place  in  the 
county  where  it  was  made. 

Blackburn  v.  State,  79  Tex.  Cr.  App.  466,  185  S.  W. 
581. 

Sale  of  Homemade  Cider  by  Agent. — Where  the  law 
relating  to  sales  of  intoxicating  liquors  and  other  liquors, 
excepts  from  its  prohibition  sales  of  "cider  in  any  quantity 
by  the  manufacturer  from  fruits  grown  on  his  own  land 
within  the  state,"  and  the  right  of  sale  by  agent  or  employee 
is  an  incident  of  ownership,  such  a  manufacturer  could  sell 
through  his  agent,  and  neither  would  be  amenable  to  the 
penalty  for  illegal  sale. 

State  v.  Williams,  172  N.  C.  973,  90  S.  E.  905. 

[NOTE.  This  decision  was  under  an  express  exception 
from  the  North  Carolina  prohibition  law,  common 
heretofore  in  most  such  laws,  but  no  counterpart  to 
which  is  found  in  the  Volstead  Act.] 

Aiding  and  Abetting  an  Unlawful  Sale. — Wrhere  de- 
fendant aided  and  abetted  in  an  unlawful  sale  of  liquor  on 
his  premises,  such  offense  being  made  a  misdemeanor  by 
law,  defendant  was  guilty  as  a  principal. 

State  v.  Winner,  153  N.  C.  602,  69  S.  E.  9. 

State  v.  Denton,  154  N.  C.  641,  70  S.  E.  839. 

Crawley  v.  State  (Ala.  App.),  73  So.  222,  223. 

Wrongful  sale  of  intoxicating  liquor  being  a  misdemeanor, 
all  who  participated  therein  knowingly,  would  be  separately 
liable  as  principals  in  the  offense. 

State  v.  Gross,  76  N.  H.  304,  82  Atl.  533. 

"The  sale  of  intoxicating  liquor  in  the  state  of  Georgia  is 
a  misdemeanor.  All  who  procure,  counsel,  command,  aid, 
or  abet  the  commission  of  a  misdemeanor  are  regarded  by 
the  law  as  principal  offenders,  and  may  be  indicted  as  such; 
and  any  one  charged  in  an  indictment  with  the  sale  of  in- 
toxicating liquors  may  be  convicted  by  proof,  either  that  he 
directly  and  personally  enacted  the  criminal  transaction,  or 
that  he  procured,  counseled,  commanded,  aided,  or  abetted 
the  criminal  transaction  of  another,  who  was  the  direct  and 


TITLE  II— SEC.  3  OF  ACT  111 

immediate  actor.     Loeb  v.  State,  6  Ga.  App.  23,  64  S.  E. 
338." 

Littlefield  v.  State,  22  Ga.  App.  783,  97  S.  E.  259. 

And  where  defendant  knowingly  permitted  another  to  use 
his  home  for  the  illicit  sale  of  whisky  on  one  occasion,  he 
was  an  aider  and  abettor  on  that  occasion ;  that  it  is  as  much 
a  violation  of  law  as  if  he  habitually  permitted  it. 

State  v.  Denton,  154  N.  C.  641,  70  S.  E.  839. 

And  under  a  statute  providing  that  all  persons  concerned 
in  the  commission  of  a  crime,  whether  felony  or  misde- 
meanor, and  whether  they  directly  commit  the  act  consti- 
tuting the  offense,  or  aid  and  abet,  in  its  commission  are 
principals,  where  restaurant  patrons  gave  a  waiter  a  dollar, 
with  the  request  that  he  secure  whisky  for  them,  and  the 
waiter  went  to  an  illegal  seller  of  whisky,  who  gave  him  a 
pint  for  the  dollar,  the  waiter  returning  the  bottle  to  the 
restaurant  patrons  is  guilty. 

Moyean  v.  State,  18  Ariz.  491,  62  Pac.  135,  L.  R.  A. 
1917D,  1014n. 

And  a  person  who  acts  as  go-between  in  purchasing  in- 
toxicating liquor  at  an  illegal  sale  thereof,  and  who  thereby 
aids  and  abets  in  the  consummation  of  the  sale  is  punishable 
under  the  statute. 

Kendrick  v.  State,  11  Okla.  Cr.  App.  380,  146  Pac.  727. 

See  also  post,  under  Sec.  19,  Title  II. 

Advising  or  Encouraging  Sale. — A  prosecution  for 
selling  intoxicating  liquors  brought  against  the  president  of 
a  corporation  and  its  manager,  where  the  president  actually 
sold  the  liquor  and  the  manager,  although  not  present  at 
the  sale,  prepared  the  invoice  therefor  in  the  usual  course 
of  business  on  information  received  from  the  buyer,  and 
left  the  invoice  on  the  desk  of  the  shipping  clerk  for  his  at- 
tention, such  acts  did  not  constitute  advising  or  encourag- 
ing the  commission  of  the  offense. 

Hill  v.  State,  19  Ariz.  78,  165  Pac.  326. 

Participating  in  Sale. — \Yhere  one  asked  to  get  liquor 
for  another  takes  the  other  to  a  house  where,  on  receiving 


112  TITLE  II— SEC.  3  OF  ACT 

the  other's  money,  he  goes  in  and  returns  with  a  pint  of 
whisky  and  gives  it  to  the  other  without  disclosing  the  name 
of  the  person  from  whom  he  procured  it,  he  is  guilty  of 
selling  whisky  being  a  necessary  factor  and  active  partici- 
pant in  the  sale. 

Williams  v.  State,  129  Ark.  344,  196  S.  W.  125. 

Where  a  defendant,  to  be  guilty  of  aiding  a  liquor  law 
violation  must  contribute  to  the  result,  it  is  sufficient  if  by 
prearrangement  with  the  principal  he  is  present  to  render 
assistance  if  it  should  become  necessary. 

Bridgeforth  v.  State,  15  Ala.  App.  502,  74  So.  402. 
See  also  post,  under  Sec.  19. 

Aiding  and  Abetting  Unlawful  Keeping  for  Sale.— 

Under  a  statute,  providing  that  a  clerk  who  violates  or  aids 
in  violating  any  provision  of  law  relating  to  intoxicating 
liquors  is  equally  guilty  with  the  principal,  a  clerk  who  aids 
another  keeping  intoxicating  liquors  with  intent  unlawfully 
to  sell  the  same  is  guilty. 

State  v.  Stickney  111  Me.  590,  90  Atl.  705. 

Aiding  and  Abetting  Sale  for  Purpose  of  Procuring 
Evidence  to  Convict. — "The  defendant  intended  to  com- 
mit the  act  which  the  law  prohibits.  He  knew  the  law,  and 
brought  the  whisky  into  Thomas  county  for  the  express  pur- 
pose of  inducing  others  to  violate  the  law,  for  the  purpose 
of  assigning  them  in  the  violation  of  the  law.  He  was  en- 
meshed in  the  net  spread  by  himself.  The  law  does  not 
countenance  the  commission  of  a  crime,  even  though  the 
purpose  be  the  apprehension  of  others  engaged  in  the  same 
criminal  conduct.  There  is  crime  enough  already,  and  it  is 
no  part  of  the  duty  of  an  officer  of  the  law  to  aid  or  abet  an- 
other in  the  commission  of  crime.  If,  to  accomplish  a  great 
good,  it  is  ever  permissible  to  do  a  wrong,  certainly  the  min- 
isters of  the  law  are  not  to  be  encouraged  in  their  efforts  to 
induce  others  to  commit  crime,  even  though  they  must  in- 
tend the  arrest  and  punishment  of  their  unsuspecting  victims. 
The  sheriff  of  the  county  washed  his  hands  of  the  whole 
transaction,  and  he  is  to  be  commended  for  his  act." 

Mitchell  v.  State,  20  Ga.  App.  778,  93  S.  E.  709,  710. 


TITLE  II— SEC.  3  OF  ACT  113 

Acting  as  Intermediary  or  Agent  in  Sale  Purchase. — 
Where  the  intermediary  between  the  purchaser  and  the  sell- 
er is  a  necessary  factor,  without  whose  assistance  the  sale 
of  liquor  could  not  have  been  consummated,  he  is  interested 
in  the  sale,  in  the  sense  of  the  law,  whether  he  has  any 
pecuniary  interest  or  not. 

Condit  v.  State,  130  Ark.  341,  197  S.  W.  579. 

One  who  acts  as  intermediary  in  a  sale  of  liquor  for  both 
the  seller  and  the  buyer,  and  except,  for  whom  the  sales  would 
not  have  been  made,  is  guilty  of  an  illegal  sale;  but  it  is 
different  where  one  buys  liquor  for  a  third  party  as  a  mat- 
ter of  accommodation  and  not  as  a  subterfuge  and  was  not 
interested  in  the  sale. 

Dean  v.  State,  130  Ark.  322,  197  S.  W.  684. 
Hamilton  v.  State,  80  Tex.  Cr.  App.  516,  191  S.  W. 
1160. 

And  if  defendant  had  no  interest  in  and  did  not  reap  any 
profit  from  whisky,  but  procured  it  as  an  accommodation, 
it  would  not  constitute  a  "sale."  (Per  Gaines,  special 
Judge.) 

Alexander  v.  State   (Tex.  Cr.  App.),  204  S.  W.  644, 
645. 

But  one  who,  to  accommodate  a  friend,  purchased  whisky 
for  him,  receiving  half  of  the  purchase  price  from  his  friend, 
and  paying  the  other  half  himself  and  keeping  part  of  the 
whisky,  acted  as  an  intermediary  for  both  parties  in  render- 
ing a  service  which  made  the  sale  possible  and  was  there- 
fore guilty  as  a  principal  of  unlawfully  selling  whisky. 

Wilson  v.  State,  114  Ark.  574,  169  S.  W.  795. 
See  also  post,  under  Sec.  18. 

Validity  of  Provision  of  Statute.— The  prohibition 
against  any  sale  of  intoxicating  liquor  applies  to  a  sale  which 
passes  the  title,  regardless  of  the  seller's  ownership;  and  so 
a  statute  providing  that  any  person  who  shall  act  as  agent 
or  assisting  friend  of  the  buyer  or  seller  of  intoxicating  liq- 
nor  shall  be  guilty,  is  valid. 

Scott  v.  State,  3  Ala.  App.  142,  57  So.  413. 

—8 


114  TITLE  II— SEC.  3  OF  ACT 

Purchasing  Liquor  for  Another. — Accused,  who,  on 
request  of  a  third  person  to  obtain  for  him  some  whisky,  pur- 
chased it  from  one  selling  in  violation  of  law,  cannot  escape 
liability  for  acting  as  the  agent  of  the  purchaser  by  showing 
that  he  had  been  employed  to  obtain  evidence  against  those 
unlawfully  selling  intoxicants,  and  had  obtained  the  assur- 
ance of  the  deputy  sheriff  before  making  the  purchase  that 
he  would  not  incur  any  risk  for  his  offense,  was  wholly  un- 
necessary to  obtain  evidence  against  the  seller,  and  was  en- 
tirely distinct  from  that  of  unlawful  selling. 

Brantley  v.  State,  107  Miss.  466,  65  So.  512. 

Under  a  statute  making  it  an  offense  to  act  as  agent  or  as- 
sistant to  either  the  seller  or  purchaser  in  effecting  the  sale 
of  any  liquor  a  sale  of  which  is  unlawful  under  the  act,  the 
defendant's  purchase  of  whisky  outside  of  the  state  with 
money  given  to  him  in  the  state  and  his  act  in  bringing  it  back 
into  the  state  for  delivery,  was  not  unlawful. 

Anderson  v.  State,  109  Miss.  521,  68  So.  770. 

Where  accused  procured  the  liquor,  which  he  delivered  to 
a  third  person,  in  a  town  where  the  sale  of  liquor  was  pro- 
hibited, he  is  guilty  of  the  unlawful  retailing  of  intoxicants, 
though  he  purchased  the  liquor  as  agent  for  such  third  per- 
son. 

Pope  v.  State,  108  Miss.  706,  67  So.  177. 

Accused,  who  informed  the  prosecuting  witness,  who  fur- 
nished him  with  money  to  buy  whisky,  that  he  knew  where 
it  could  be  purchased,  is  guilty  of  an  unlawful  sale  in  pro- 
curing whisky  for  the  witness. 

Woods  v.  State,  114  Ark.  391,  170  S.  W.  79. 

Attempt  to  Procure  Liquor  for  Another. — A  person, 
who  upon  the  solicitation  of  another,  attempts  to  procure  in- 
toxicating liquors  for  him,  but  does  not  himself  solicit  the 
giving  of  an  order  therefor,  is  not  guilty  of  a  violation  of 
the  law  against  soliciting  or  taking  orders. 

Bain  v.  State,  76  Tex.  Cr.  App.  519,  176  S.  W.  563. 

Accomplices  and  Accessories. — A  person  who  know- 
ingly takes  part  in  the  unlawful  sale  of  spirituous  liquor 


TITLE  II— SEC.  3  OF  ACT  115 

thereby  aids  and  assists  the  seller  in  committing  a  crime,  and 
hence  is  an  accomplice. 

State  v.  Ryan,  1  Boyce's  (Del.)  23,  75  Atl.  869. 

But  one  who  purchased  intoxicating  liquor  is  not  an  ac- 
complice with  the  seller,  since  to  aid  or  abet  requires  an  ap- 
proach to  the  crime  from  the  same  angle  as  the  principal, 
whereas  a  purchaser  of  liquor  approaches  from  a  different 
angle  than  that  of  the  seller. 

Baumgartner  v.  State  (Ariz.),  178  Pac.  30. 

And  one  employed  to  make  purchase  of  intoxicants  for 
purpose  of  appearing  as  witness  against  defendant  was  not 
an  "accomplice,"  within  the  law,  so  that  conviction  could  be 
had  on  his  uncorroborated  testimony;  the  crime  being  the 
sale  and  not  the  purchase. 

State  v.  Busick,  90  Ore.  466,  177  Pac.  64. 

See  also,  State  v.  Gosell,  137  Minn.  41,  162  N.  W.  683. 

Landlord  as  Accessory. — One  who  rents  a  house  to  an- 
other with  the  knowledge  that  the  latter  intends  to  use  it  for 
the  illegal  sale  or  storage  of  intoxicating  liquors,  is  an  ac- 
cessory, aiding  and  abetting  in  the  commission  of  this  offense, 
and  therefore  may  be  convicted  of  this  misdemeanor  as  a 
principal ;  but  it  is  for  the  jury  alone,  and  not  the  court,  to 
determine  whether  certain  facts  constitute  criminal  negli- 
gence, and  for  that  reason  it  was  error  to  charge  the  jury 
that,  if  the  defendant,  when  he  rented  hjs  home,  had  an  op- 
portunity to  know  that  the  person  to  whom  he  rented  it  in- 
tended to  use  it  for  the  illegal  sale  or  keeping  of  liquors,  he 
Avould  fie  guilty. 

Moody  v.  State,  14  Ga.  App.  523,  81  S.  E.  588. 

Procurer  as  Aider  and  Abettor. — Alabama  Acts,  Sp. 
Sess.  1907,  p.  71,  makes  it  unlawful  for  any  person  to  sell, 
barter,  exchange,  give  away,  or  otherwise  dispose  of  spirit- 
uous liquors,  and  Code  1907,  7363,  makes  it  a  crime  to  aid, 
abet,  counsel,  or  procure  any  unlawful  sale,  purchase,  or 
gift  or  other  unlawful  disposition,  of  such  liquors.  Held, 
that  since  one  who  procures  prohibited  liquors  for  another, 
who  receives  the  same,  necessarily  also  aids  and  abets  the 
sale  or  unlawful  disposition  thereof  by  the  dispenser,  the 


116  TITLE  II— SEC.  3  OP  ACT 

one  so  procuring  is  guilty  of  aiding  and  abetting  though  the 
purchaser  or  receiver  may  not  be  punishable. 

Johnson  v.  State,  172  Ala.  424,  55  So.  226,  Ann.  Cas. 
1913E,  296. 

And  one  who  procured  liquor  from  an  illicit  dealer  in  the 
state  by  purchase  and  delivered  it  to  another,  both  the  pur- 
chase and  the  delivery  being  made  at  a  place  where  the  sale 
of  liquor  is  prohibited,  is  deemed  a  principal,  and  liable  crim- 
inally as  the  seller  of  the  liquor  is  liable,  since  in  misde- 
meanors all  who  participated  in  the  offense  are  principals. 
State  v.  Burchfield,  149  N.  C.  537,  63  S.  E.  89,  16  Ann. 
Cas.  555. 

But  where  the  penalties  of  the  statute  are  directed  against 
the  seller  and  not  against  the  buyer,  one  who  purchases  in- 
toxicating liquor  in  a  dry  county  at  the  solicitation  of  an- 
other, and  with  his  money  and  for  his  use  and  as  his  agent, 
in  good  faith,  and  not  as  a  subterfuge  or  for  purposes  of 
evasion,  does  not  commit  an  offense. 

State  v.  Provencher,  135  Minn.  214,  160  N.  W.  673, 
Ann.  Cas.  1917E,  598. 

The  law,  however,  does  not  countenance  an  evasion  or 
subterfuge.  The  claimed  agency  must  be  exercised  in  good 
faith  and  not  to  hide  a  participation  in  an  illegal  traffic.  The 
evidence  in  this  case  was  such  as  to  make  the  defense  of 
agency  in  good  faith  for  the  jury,  and  the  court  by  charging 
that  there  was  no  defense  of  agency  in  good  faith  errone- 
ously deprived  the  defendant  of  the  right  to  have  the  ques- 
tion determined  by  the  jury. 

State  v.  Provencher,  135  Minn.  214,  160  N.  W.  673, 
Ann.  Cas.  1917E,  598. 

Using  Name  of  Another  in  Ordering  or  Receiving 
Liquor. — "Where  it  would  appear  to  have  been  the  intention 
of  the  lawmaker  to  make  it  an  offense  for  a  person  to  use 
the  name  of  another  in  ordering  or  receiving,  either  person- 
ally or  through  an  agent  authorized  in  writing,  shipments  of 
intoxicating  liquors  in  prohibited  territory ;  in  either  case  the 
offense  consists,  not  in  ordering  the  liquor,  whether  for  le- 
gal or  illegal  purposes,  but  in  using  the  name  of  another  in 


TITLE  II— SEC.  3  OF  ACT  117 

the  ordering  and  receiving;  and  section  8,  in  declaring  that 
'it  shall  be  unlawful  for  any  person  to  use  the  name  of  an- 
other in  ordering  or  receiving,'  etc.,  is  to  be  interpreted  as 
meaning  that  it  shall  be  unlawful  for  any  person  to  use  a 
name  other  than  his  own  for  the  purpose  stated,  and  it  is 
therefore  immaterial  in  a  prosecution  under  that  section 
whether  the  name  which  the  defendant  is  charged  with  hav- 
ing used  is  that  of  a  real  or  a  fictitious  person." 

State  v.  Ferris,  142  La.  198,  76  So.  608. 

Requesting  Another  to  Bring  in  Liquor. — Under  the 
first  Arizona  constitutional  amendment,  prohibiting  the  in- 
troduction of  intoxicating  liquors  into  the  state,  one  who  re- 
quested another  to  bring  liquor  into  the  state  was  punish- 
able as  a  principal,  although  he  purchased  it  from  such  per- 
son within  the  state,  under  Pen.  Code  1913,  §  27,  relating  to 
parties  to  crimes. 

Stover  v.  State,  19  Ariz.  308,  170  Pac.  788. 

Permitting  Sales  on  Leased  Premises. — Under  a  law 
defining  the  crime  of  permitting  liquor  to  be  sold  on  leased 
premises  in  local  option  territory,  it  must  be  shown  that  the 
leasing  was  with  intent  or  with  knowledge  that  liquors  were 
to  be  sold  on  the  premises. 

Elkhorn  Min.  Corp.  v.  Commonwealth,  173  Ky.  417,  191 
S.  W.  256. 

Aiding  in  Preparing  for  Business. — The  mere  fact  that 
a  manufacturer  or  wholesaler  furnishes  to  a  retailer  money 
and  fixtures  for  the  purpose  of  enabling  the  retailer  him- 
self to  conduct  a  retail  liquor  business  does  not  violate  the 
law. 

Baxter  v.  Chattanooga  Brewing  Co.  (Ala.),  82  So.  16. 

The  invalidating  effect  of  the  law  prohibiting  one  engaged 
in  the  manufacture  or  sale  of  intoxicants  from  conducting 
business  for  the  retail  of  such  liquors,  cannot  be  visited  upon 
an  agreement  not  made  for  the  purpose  of  conducting  a  re- 
tail liquor  business,  either  in  the  name  of  the  manufacturer 
or  wholesaler  or  in  the  name  of  another. 

Baxter  v.  Chattanooga  Brewing  Co.  (Ala.),  8  So.  16. 


118  TITLE  II— SEC.  3  OF  ACT 

Purchase. — In  some  states  it  is  not  unlawful  for  one  to 
buy  intoxicating  liquor,  for  his  own  use  and  bring  it  into  the 
state,  or  to  have  liquor  so  purchased  in  his  possession  for 
personal  use. 

Adams  Exp.  Co.  v.  Commonwealth,  154  Ky.  462,  157  S. 

E.  908,  48  L.  R.  A.,  N.  S.,  342. 
Commonwealth  v.  White  (Ky.),  179  S.  E.  469. 

A  person  aiding  the  buyer,  but  not  the  seller,  is  not  guilty 
of  selling  intoxicating  liquors  since  the  statute  does  not  make 
the  purchase,  but  only  the  sale,  unlawful. 

Wilson  v.  State,  130  Ark.  204,  1%  S.  W.  921. 

And  it  being  no  violation  of  law  for  a  person  to  purchase 
intoxicating  liquor;  it  was  not  a  violation  of  law  for  ac- 
cused to  aid  the  purchaser  in  buying  liquor  at  his  instance; 
it  not  appearing  that  accused  was  in  any  wise  agent  for  the 
seller. 

Harris  v.  State,  113  Miss.  457,  74  So.  323,  L.  R.  A. 

1917D,  1013n. 

Hightower  v.  State,  73  Tex.  Cr.  App.  258,  165  S.  W. 
184. 

Loan. — A  loan  of  beer  is  a  violation  of  the  Alabama 
prohibition  law. 

.  Sanders  v.  State  (Ala.  App.),  79  So.  312. 

One  who  as  an  accommodation,  loaned  to  another  whisky 
with  the  understanding  that  a  similar  amount  was  to  be  re- 
turned cannot  be  convicted  for  the  sale  or  barter  of  intoxi- 
cating liquors,  since  in  a  loan  goods  are  transferred  to  an- 
other to  be  returned  by  the  latter  to  the  lender  in  kind,  while 
a  sale  is  a  transfer  of  property  in  consideration  of  the  pay- 
ment of  money,  and  a  barter  is  an  exchange  of  goods  for 
other  goods. 

Jones  v.  State,  108  Miss.  530,  66  So.  987. 

Evidence  that  whisky  was  loaned  by  defendant  to  another 
will  not  sustain  a  conviction  for  illegal  sale  of  intoxicating 
liquor. 

Garfield  v.  State.  114  Miss.  710,  75  So.  548. 


TITLE  II— SEC.  3  OF  ACT  119 

Gift  of  Liquor. 

Giving  a  friend  a  drink  of  whisky,  though  in  a  place  where 
no  one  could  see  what  was  being  done,  is  a  violation  of  the 
Alabama  law. 

Haynes  v.  State,  5  Ala.  App.  167,  59  So.  325. 

Grace  v.  State,  1  Ala.  App.  211,  56  So.  25. 

Furnishing. 

The  word  "furnish,"  as  used  in  a  statute,  prohibiting  a 
furnishing  of  alcoholic  liquors  in  certain  terrritory,  means 
to  supply,  to  offer  for  use,  to  give,  or  to  hand. 
People  v.  Joy,  30  Cal.  App.  36,  157  Pac.  507. 

Furnishing  to  Soldier. — If  certain  bottles  in  defendant's 
possession  contained  wine  which  would  intoxicate,  and  de- 
fendant left  a  bottle  where  his  brother-in-law,  a  marine  in 
the  military  forces  of  the  United  States,  could  get  it  by  ar- 
rangement, defendant  violated  Acts  35th  Leg.  (4th  Called 
Sess.)  c.  7,  punishing  the  procuring  or  furnishing  of  intox- 
icating liquors  for  or  to  any  person  in  the  military  service 
of  the  United  States. 

Gardner  v.  State  (Tex.  Cr.  App.),  212  S.  W.  169. 

Barter  or  Exchange  for  Other  Property. 

Under  a  state  statute  making  it  unlawful  for  any  person 
to  sell,  barter,  exchange,  give  away,  or  otherwise  dispose  of, 
spirituous  liquors;  and  another  statute  making  it  a  crime  to 
aid,  abet,  counsel,  or  procure  any  unlawful  sale,  purchase,  or 
gift,  or  other  unlawful  disposition  of  such  liquors,  with  the 
further  provision  that  a  conviction  for  violation  thereof  may 
be  had  under  an  indictment  for  selling  such  liquor  contrary 
to  law,  a  conviction  may  be  had  on  proof  of  a  barter  or  ex- 
change of  liquor  for  other  property. 

Johnson  v.  State,  172  Ala.  424,  55  So.  226,  Ann.  Cas. 
1913E.  296. 

Exchange  for  Stolen  Property. — "Under  the  prohibi- 
tion law,  making  it  unlawful  to  sell  or  barter  for  a  valuable 
consideration  intoxicating  liquors,  the  exchange  of  intoxi- 
cating liquors  for  stolen  property  constitutes  a  violation." 
Turner  v.  State,  18  Ga.  App.  393,  89  S.  E.  538. 


120  TITLE  II— SEC.  3  OF  ACT 

Transporting  Liquor. 

See  also  post,  Sees.  10,  13,  14,  and  15. 

Receiving  from  Carrier  Construed. — A  statute  making 
it  unlawful  to  receive  intoxicating  liquors  from  a  common 
or  other  carrier,  or  to  possess  liquors  so  received,  is  not 
confined  to  carriers  for  hire,  but  was  intended  to  cover  ev- 
ery phase  of  the  handling  of  intoxicants  except  as  other- 
wise indicated  in  the  statute. 

Liquor  Transp.  Cases  v.  State,  140  Tenn.  (13  Thomp- 
son) 582,  205  S.  W.  423. 

As  to  receiving  altar  wine  from  carrier  and  transporta- 
tion thereof,  see  ante,  under  Sec.  6. 

On  Person. — Under  a  section  providing  that  "no  person, 
except  as  provided  in  this  chapter  shall  bring  into  this  state 
or  transport  from  place  to  place  within  this  state,  by  wagon, 
cart,  or  other  vehicle,  or  by  any  other  means  or  mode  of 
carriage,  any  liquor  or  liquids  containing  alcohol,"  *  *  * 
transport  means  to  carry  or  convey  from  one  place  to  an- 
other, and  carrying  liquor  on  the  person  is  a  means  or  mode 
of  carriage. 

State  v.  Pope,  79  S.  C.  87,  60  S.  E.  234. 

A  defendant,  who  asked  a  witness  against  him  whether 
he  wanted  some  whisky,  and  who,  on  an  affirmative  answer, 
went  away  to  some  hidden  store  and  returned  carrying  a 
quart  of  whisky  in  his  hand,  which  he  handed  to  the  witness 
for  a  price,  was  guilty  of  carrying  around  on  his  person  in- 
toxicating liquor  with  intent  to  sell  it. 

State  v.  Alderman  (la.),  174  N.  W.  30. 

Accessory  to  Transportation. — Under  the  constitu- 
tional amendment  prohibiting  the  introduction  of  whisky  in- 
to the  state  for  sale,  one  aiding  and  assisting  the  principal  in 
the  commission  of  the  offense  by  driving  an  automobile  hired 
by  the  principal,  if  knowing  that  he  was  assisting  the  prin- 
cipal in  bringing  the  whisky  into  the  state  or  if  having  rea- 
son to  know  and  making  no  investigation  or  inquiry,  would 
be  guilty  of  an  offense,  as,  though  it  might  be  impossible  for 
him  to  definitely  ascertain  the  purpose  for  which  the  prin- 


TITLE  II— SEC.  3  OF  ACT  121 

cipal  was  bringing  liquor  into  the  state,  he  should  at  least 
have  made  some  inquiry  into  such  purpose. 

Aaron  v.  State,  18  Ariz.  378,  161  Pac.  881. 

Conspiracy. — There  may  be  a  conspiracy  to  violate  the 
Reed  Amendment  (Comp.  St.  1918,  §§  8739a,  10387a- 
10387c)  by  transporting  liquor  into  a  prohibition  state,  in- 
dictable under  Criminal  Code,  §  37  (Comp.  St.  §  10201). 

Laughter  v.  United  States  (C.  C.  A.),  259  Fed.  94. 

To  create  such  relation,  between  a  conspiracy  and  the 
substantive  offense  which  was  its  purpose,  as  ought  to  pre- 
vent a  double  prosecution,  there  must  be  a  complete  identity 
between  those  acts  which  are  the  overt  acts  essential  to  make 
the  conspiracy  punishable  and  those  acts  which  are  neces- 
sary to  make  out  the  substantive  offense. 

Laughter  v.  United  States  (C.  C.  A.),  259  Fed.  94. 

For  Unlawful  Use. — Under  the  Federal  law  prohibit- 
ing the  transportation  of  intoxicating  liquors  from  one  state 
to  another,  for  unlawful  use  in  the  latter  state,  and  state 
law  prohibiting  the  sale  or  keeping  for  sale  of  intoxicating 
liquors,  etc.,  an  interstate  carrier  is  not  prohibited  from 
bringing  into  the  state  intoxicating  liquors,  except  only  such 
as  are  intended  for  unlawful  use  in  the  state,  and  a  carrier 
in  possession  of  liquors  for  delivery  to  a  person  who  intends 
to  use  the  same  in  violation  of  law,  or  a  carrier  delivering 
in  the  state  liquor  to  a  person  in  the  state  intending  to  use 
the  same  illegally,  violates  the  state  law,  unless  it  has  no 
knowledge  of  the  unlawful  purpose. 

Southern  Exp.  Co.  v.  State,  188  Ala.  454,  66  So.  115. 

"Shipment." — "To  deliver  for  shipment  and  to  ship 
mean  the  same  thing." 

State  v.  Lieber,  143  La.  158,  78  So.  431. 

Private  Carrier. — A  private  carrier  could,  under  the 
South  Carolina  statute,  for  hire  or  as  a  favor,  bring  into 
the  state  not  more  than  one  gallon  of  liquor  for  another  per- 
son's personal  use  during  one  calendar  month  without  in- 


122  TITLE  II— SEC.  3  OF  ACT 

tent  to  violate  the  law,  having  the  same  privilege  of  trans- 
porting liquor  as  a  common  carrier  for  hire. 
State  v.  Gens,  107  S.  C.  448,  93  S.  E.  139. 

A  person  ordering  liquor,  not  exceeding  a  gallon  a  month, 
to  be  brought  into  the  state  for  his  personal  consumption, 
had  the  choice  of  bringing  it  in  by  a  private  carrier  for  hire 
or  a  common  carrier. 

State  v.  Allston,  107  S.  C.  485,  93  S.  E.  177. 

But  a  law  prohibiting  transporting  liquor  into  the  state, 
for  another  does  not  apply  to  one  who  carries  liquor  into  the 
state  for  himself  for  purpose  of  resale. 

Rivard  v.  State,  133  Ark.  1,  202  S.  W.  39. 

Possession  for  Transportation  to  Druggist. — Under 
the  Georgia  statute,  it  is  not  illegal  for  a  common  carrier 
to  have  possession  of  pure  alcohol  to  transport  from  a 
wholesale  druggist  to  a  practicing  physician  at  another  point 
in  the  state,  keeping  drugs  in  his  office  to  compound  his  own 
medicine  and  using  alcohol  for  medicinal  purposes  only, 
where  all  conditions  of  act  were  complied  with. 

Southern  Exp.  Co.  v.  State  (Ga.  App.),  100  S.  E.  791; 
S.  C.,  100  S.  E.  109. 

Automobile  as  a  Common  Carrier. — An  automobile 
may  be  so  used  as  to  become  a  "common  carrier''  in  inter- 
state commerce. 

United  States  v.  Simpson  (D.  C.),  257  Fed.  860. 

Within  State.— "In  Munn  v.  State,  5  Okl.  Cr.  App.  245, 
114  Pac.  272,  it  is  held:  'When  a  person  is  charged  with 
conveying  intoxicating  liquor  from  a  point  unknown  to  some 
definite  point  named,  and  the  proof  shows  that  the  person 
so  charged,  when  first  discovered,  was  conveying  whisky, 
and  fails  to  show  from  what  definite  point  he  started  with 
it,  it  is  sufficient.'  In  Rupard  v.  State,  7  Okl.  Cr.  App.  201, 
122  Pac.  1108,  it  is  held:  'In  prosecutions  for  unlawfully 
conveying  intoxicating  liquors  from  one  place  in  this  state 
to  another  place  therein,  the  state  is  only  required  to  estab- 
lish by  the  proof,  beyond  a  reasonable  doubt,  that  the  liq- 
uor charged  to  have  been  conveyed,  or  some  portion  of  it, 


TITLE  II— SEC.  3  OF  ACT  123 

was  conveyed  as  alleged  in  the  information.'  In  Watkins  v. 
State,  13  Okl.  Cr.  App.  507,  165  Pac.  621,  it  is  held:  'It  is 
unlawful  for  any  person  to  convey  from  place  to  place  with- 
in this  state  intoxicating  liquors  which  said  person  has  pre- 
viously purchased  within  this  state,  and  it  is  immaterial 
whether  the  person  so  purchasing  such  liquor  and  convey- 
ing the  same  intended  to  use  such  liquor  lawfully  or  unlaw- 
fully. Intent  is  not  a  material  ingredient  of  the  offense  of 
conveying  intoxicating  liquors.'  Maynes  v.  State,  6  Okla. 
Cr.  App.  487,  119  Pac.  644." 

McNeal  v.  State  (Okl.  Cr.  App.),  179  Pac.  943,  944. 

From  Train  to  Depot. — A  carrying  of  intoxicating  liq- 
uors from  a  train  to  the  depot  platform  is  a  "transportation." 
Liquor  Transp.  Cases  v.  State,  140  Tenn.  (13  Thomp- 
son) 582,  205  S.  W.  423,  424. 

Delivery  by  Carrier  to  Transfer  Company. — In  view 
of  Rem.  Code  Wash.  1915,  §  6262 — 15,  authorizing  a  person 
to  bring  into  the  state  two  quarts  of  whisky  or  a  dozen  quarts 
of  beer,  first  obtaining  a  permit  giving  his  name,  which  shall 
be  affixed  to  the  package,  and  requiring  the  Carrier  before  de- 
livering the  package  to  cancel  the  permit,  and  section  6262- 
18,  making  it  unlawful  for  a  carrier  to  bring  liquor  into  the 
state  otherwise  than  permitted  by  the  statute,  it  would  be  a 
crime,  both  under  such  statute  and  Criminal  Code,  §  240 
(Comp.  St.  §  10410),  for  a  carrier  to  deliver  to  a  transfer 
company  named  as  consignee  in  the  bill  of  lading,  a  carload 
of  liquor  made  up  of  packages  bearing  permits  so  issued  to 
individuals. 

Great  Northern  Pac.  S.  S.  Co.  v.  Rainier  Brewing  Co. 
(C.  C.  A.),  255  Fed.  762. 

Shipment  into  Indian  Reservation. — Where  a  state 
law  forbids  manufacture  and  sale  of  intoxicating  liquors 
therein,  interstate  shipments  of  intoxicating  liquors  into  a 
portion  which  formerly  was  an  Indian  reservation  are  not 
authorized,  because  Indian  titles  have  been  extinguished,  the 
Webb-Kenyon  Act  having  deprived  such  shipments  of  pro- 
tection arising  out  of  their  interstate  character. 

Missouri,  etc.,  R.  Co.  v.  Danciger,  160  C.  C.  A.  176,  248 
Fed.  36. 


124  TITLE  II— SEC.  3  OF  ACT 

The  provision  of  Act  March  1,  1895,  §  8  (Comp.  St.  § 
4136b),  making  it  an  offense  to  carry  or  have  carried  intoxi- 
cating liquors  into  Indian  Territory,  held  not  repealed  by 
implication  by  Act  March  3,  1917,  §  5  (Comp.  St.  1918,  §§ 
8739a,  10387a-10387c),  and  to  be  still  in  force  in  that  part 
of  Oklahoma  then  comprising  Indian  Territory. 

United  States  v.  Luther  (D.  C.),  260  Fed.  579. 

Intent  Immaterial. — Where  it  is  unlawful  for  any  per- 
son to  convey  from  place  to  place  within  a  state  intoxicating 
liquors  which  said  person  has  previously  purchased  within 
this  state,  it  is  immaterial  whether  the  person  so  purchas- 
ing such  liquor,  and  conveying  the  same  intended  to  use 
such  liquor  lawfully  or  unlawfully.  Intent  is  not  a  material 
ingredient  of  the  offense  of  conveying  intoxicating  liquors. 
Watkins  v.  State,  13  Okla.  Cr.  App.  507,  165  Pac.  621. 

But  to  render  a  carrier  liable  to  a  penalty  under  Ky.  St. 
2569b,  of  knowingly  transporting  and  delivering  intoxicating 
liquor  intended  for  sale,  it  is  necessary  that  the  agent  of  the 
carrier  making  the  delivery  knew  of  the  purpose  or  use  to 
which  such  liquor  was  to  be  put,  and  knowledge  of  the  agent 
at  other  points  is  insufficient. 

American  Exp.  Co.  v.  Commonwealth,  171  Ky.  1,  186 
S.  \Y.  887. 

And  a  person  who  conveys  a  package  from  one  place  in 
this  state  to  another  place  therein,  which  package  contains 
intoxicating  liquor  of  which  he  has  no  knowledge  and  no  in- 
formation sufficient  to  put  a  reasonable  man  on  inquiry,  is 
not  subject  to  the  punishment  imposed  by  the  statute  for  un- 
lawfully conveying  intoxicating  liquor  from  one  place  in  this 
state  to  another  place  therein. 

Golpi  v.  State,  14  Okla.  Cr.  App.  564,  174  Pac.  288. 

Movement  on  Own  Premises. — A  law  forbidding  the 
transportation  of  intoxicating  liquor  into  the  state  or  from 
one  point  to  another  within  the  state,  contemplates  nothing 
less  than  the  transporting  from  one  premises  to  another  and 
does  not  forbid  a  movement  of  liquors  by  a  person  within 
the  limits  of  his  own  premises  or  in  his  own  house. 

Liquor  Transp.  Cases  v.  State,  140  Tenn.  (13  Thomp- 
son) 582,  205  S.  W.  423. 


TITLE  II— SEC.  3  OF  ACT  125 

Delivery  as  Distinguished  from  Transportation. — A 

mere  delivery  of  liquor  by  one  person  to  another,  entirely 
disconnected  with  the  act  of  transporting  liquor  into  the 
state,  does  not  constitute  an  offense  under  a  law  denouncing 
the  shipment,  transportation,  or  delivery  of  liquors  from  an- 
other state  or  territory  or  foreign  country  to  another  person, 
firm,  or  corporation  in  the  state. 

Winfrey  v.  State,  133  Ark.  357,  202  S.  W.  23. 

Transporting  by  Agent. — Where  one  convicted  of  trans- 
porting intoxicating  liquors  within  the  limits  of  a  town  in 
violation  of  an  ordinance,  had  not  entered  the  corporate 
limits  but  had  the  liquor  transported  by  his  agent,  he  was 
guilty  under  the  rule  that  one  may  commit  a  crime  through 
the  agency  of  another. 

Hartsville  v.  McCall,  101  S.  C.  277,  85  S.  E.  599. 

Though  a  statute  makes  it  unlawful  "to  convey  or  trans- 
port over  or  along  any  public  street  or  highway  any  of  said 
liquors,  bitters  or  drinks  for  another,"  yet  as  the  party  for 
whom  they  are  transported  could  lawfully  transport  them 
for  himself,  he  is  not  guilty  of  the  offense  as  aiding  and 
assisting  those  unlawfully  transporting  them  for  him. 

Edwards  v.  State  (Ark.),  213  S.  W.  11. 
Carrying  away  liquor  bought  on  prescription,  see  ante, 
under  Sec.  8. 

Interstate  Commerce. — Transportation  of  intoxicants 
by  automobile  from  one  state  to  another  is  "interstate  com- 
merce." 

Ex  parte  Westbrook  (D.  C.),  250  Fed.  636. 

Extraterritorial  Effect. — An  act  making  it  a  misde- 
meanor to  transport  intoxicating  liquor  into  the  state,  can 
have  no  extraterritorial  effect,  and  so  cannot  make  guilty  as 
an  aider  one  who  outside  the  state  delivers  the  liquor  to  the 
carrier. 

Burton  v.  State  (Ark.),  206  S.  W.  51. 

Liability  of  Consignor. — The  words  declaring  it  an  of- 
fense "to  ship"  or  to  "transport,"  intoxicating  liquor  into  the 


126  TITLE  II— SEC.  3  OF  ACT 

state,  are  synonymous,  and  apply  to  the  carrier,  and  not  the 
consignor. 

Burton  v.  State  (Ark.),  206  S.  W.  51. 

Destination  Determines   Interstate   Character. — So 

far  as  original  carrier  of  intoxicating  liquors  is  concerned, 
the  character  of  the  shipment  as  to  being  interstate  is  de- 
termined by  the  destination  named  in  the  bill  of  lading. 

State  v.  Great  Northern  R.  Co.,  98  Wash.  197,  167  Pac. 
103. 

A  shipment  of  liquor  from  a  point  without  the  state  to  a 
point  within  it  cannot  be  regarded  as  an  intrastate  shipment 
though,  before  the  shipment  reaches  its  destination,  it  passes 
.after  crossing  the  boundary  line  of  the  state,  from  one  point 
in  it  to  another. 

Robertson  v.  State,  130  Ark.  158,  197  S.  W.  31. 

When  State  Jurisdiction  Attaches — Draying  Liquor 
from  Depot. — "Defendant's  admission  that  he  was  convey- 
ing beer,  and  his  contention  that  the  three  barrels  belonged 
to  three  different  named  individuals,  to  whom  he  was  merely 
taking  the  shipments  from  a  depot  as  a  drayman,  and  that 
beer  was  a  part  of  an  interstate  shipment  into  part  of  state 
formerly  Oklahoma  Territory,  which  consignees  had  a  right 
to  have  conveyed  to  them  from  depot,  did  not  bring  defend- 
ant within  protection  of  interstate  commerce  clause  (Const. 
U.  S.  art.  1,  §  8)." 

Smith  v.  State  (Okla.  Cr.  App.),  181  Pac.  942. 

Reed    Amendment — What  Constitutes    Violation. — 

The  Reed  amendment  to  postal  appropriation  made  by  Act 
March  3,  1917  (Comp.  St.  1918,  §  8739a),  is  not  violated 
unless  there  is  actual  transportation  of  intoxicating  liquors 
from  point  without  to  point  within  state,  which  has  prohib- 
ited their  manufacture  or  sale;  "into,"  as  used,  conveying 
idea  of  entrance,  passage,  or  motion. 

United  States  v.  Collins  (D.  C.),  254  Fed.  869. 

Relative  to  transporting  liquor  into  a  prohibition  state  in 
violation  of  Act  March  3,  1917,  §  5  (Comp.  St.  1918,  § 
8739a),  defendant  having  actually  transported  whisky  in  his 


TITLE  II— SEC.  3  OF  ACT  127 

boat  across  the  state  line  in  the  Mississippi  into  Tennessee, 
and  with  intent  that  it  should  finally  remain  in  that  state, 
it  was  immaterial  that  he  had  incidentally  gone  out  again 
with  his  boat  and  cargo,  or  that  he  was  outside  it  when  ar- 
rested. 

Bishop  v.  United  States  (C.  C.  A.),  259  Fed.  195. 

Proof  that  defendant  loaded  liquor  into  an  automobile  in 
Mississippi  and  had  carried  it  across  into  Tennessee  along 
the  highway  to  Memphis  when  arrested,  held  sufficient  to 
sustain  a  conviction  for  violation  of  the  Reed  amendment, 
although  in  following  the  road  they  were  about  to  cross  the 
line  again  into  Mississippi;  there  being  evidence  to  warrant 
a  finding  that  their  intended  destination  was  Memphis. 

Jones  v.  United  States  (C.  C.  A.),  259  Fed.  104. 

If  one  transports  intoxicating  liquors  into  a  state  whose 
laws  prohibit  their  sale  and  manufacture,  but  in  doing  so 
employs  no  instrumentality  of  interstate  commerce,  he  does 
not  violate  the  Reed- Jones  Amendment,  §  5  (U.  S.  Comp. 
St.  1918,  §  8739a). 

Sickel  v.  Commonwealth  (Va.),  99  S.  E.  678. 

Employees  on  an  interstate  train  passing  through  the  state 
were  passengers,  and  could  not  be  convicted  under  the  State 
Prohibition  Law  by  proof  that  more  than  one  quart  of  liq- 
uor was  found  in  their  possession,  in  the  absence  of  evidence 
that  they  intended  to  dispose  of  the  same  while  in  the  state; 
such  employees  being  protected  by  the  Commerce  Clause  of 
the  federal  Constitution,  and  the  Reed  Amendment  (U.  S. 
Comp.  St.  1918,  §  8739a)  to  the  Webb-Kenyon  Act  March 
1,  1913  (U.  S.  Comp.  St.  §  8739),  not  prohibiting  the  trans- 
portation of  liquor  through  a  state. 

Martin  v.  Commonwealth  (Va.),  100  S.  E.  836. 

The  Va.  Acts  1916,  c.  146,  do  not  prohibit  the  transpor- 
tation of  liquor  through  the  state,  nor  a  passenger  passing 
through  the  state  from  having  liquor  in  his  possession  while 
on  the  train  of  an  interstate  carrier  passing  through  the 
state. 

Martin  v.  Commonwealth  (Va.),  100  S.  E.  836. 


128  TITLE  II— SEC.  3  OF  ACT 

Distance  of  Transportation. — Under  the  Reed  Amend- 
ment persons  who  procured  liquor  in  Florida,  loaded  it  into 
a  motorcar,  and  started  to  carry  the  same  into  Georgia,  are 
guilty  of  violation  of  some  of  the  provisions  of  the  act,  the 
transportation  of  the  liquor  being  interstate  commerce,  even 
though  defendants  were  arrested  before  they  had  driven  two 
miles. 

Ex  parte  Westbrook  (D.  C.),  250  Fed.  636. 

Reed  Amendment  Applies  Only  to  State -Wide  Dry 

States.— The  Reed  Amendment  (Comp.  St.  1918,  §  8739a), 
prohibiting  transportation  of  intoxicating  liquors  in  inter- 
state commerce  into  any  state  whose  laws  prohibit  manufac- 
ture or  sale,  applies  only  to  states  that  have  prohibited  man- 
ufacture or  sale  within  entire  territory,  not  merely  in  parts 
under  local  option. 

United  States  v.  Collins  (D.  C.),  254  Fed.  869. 

But  it  is  held  to  be  unlawful  under  this  statute  for  an  in- 
terstate carrier  to  transport  for  beverage  purposes  intoxicat- 
ing liquors  from  without  the  state  into  a  county  which  had 
adopted  prohibition,  Rev.  St.  Tex.  1911,  art.  5727,  declaring 
the  sale,  etc.,  within  prohibition  territory  of  intoxicating  liq- 
uors with  intent  to  violate  the  law,  to  be  an  offense. 

McAdams  v.  Wells  Fargo  &  Co.  Exp.  (D.  C.),  249  Fed. 
175. 

To  render  the  Reed  Amendment  (Act  March  3,  1917,  §  5 
[Comp.  St.  1918,  §§  8739a,  10387a-10387c]),  prohibiting  the 
transportation  of  liquor  in  interstate  commerce,  except  for 
certain  purposes,  into  any  state  "the  laws  of  which  prohibit 
the  manufacture  or  sale  therein,"  of  liquors  for  beverage 
purposes,  applicable  to  a  state,  it  must  have  adopted  a  gen- 
eral policy  of  prohibition  throughout  its  territory;  but  it  is 
not  essential  that  such  prohibition  should  be  literally  without 
exception. 

Laughter  v.  United  States  (C.  C.  A.),  259  Fed.  94. 

Transportation  under  Reed  Amendment  Where  Con- 
stitutionality of  State  Law  Undecided. — "Transporta- 
tion of  intoxicating  liquors  into  Texas,  which  has  prohibited 
their  manufacture  for  beverage  purposes,  is  violation  of  Reed 


TITLE  II— SEC.  3  OF  ACT  129 

Amendment  of  postal  appropriation  made  by  Act  March  3, 
1917  (Comp.  St.  1918,  §  8739a),  though  there  is  some  ground 
to  believe  court  of  last  resort  in  Texas  will  hold  state  pro- 
hibitory law  unconstitutional,  as  the  federal  court  will  not 
anticipate  and  be  guided  by  what  the  state  court  might  there- 
after hold." 

United  States  v.  Collins  (D.  C.),  254  Fed.  869. 

Importation  for  Importer's  Consumption  as  Allowed 
by  State  Law. — Reed  Amendment  (part  of  section  5  of 
Act  March  3,  1917  [Comp.  St.  1918,  §§  8739a,  10387a- 
10387c]),  declaring  a  punishment  for  one  causing  liquor  to 
be  transported  in  interstate  commerce,  except  for  certain  pur- 
poses, into  a  state  whose  laws  prohibit  its  manufacture  or 
sale  there  for  beverage  purposes,  providing  that  nothing 
therein  shall  authorize  shipment  of  liquor  into  a  state  con- 
trary to  its  laws,  held,  in  view  of  the  prior  Wilson  and  Webb- 
Kenyon  Acts  (Comp.  St.  §§  8738,  8739),  not  intended  merely 
to  aid  the  state  law,  but  to  apply  to  liquor  which  a  person 
was  bringing  in  for  his  own  consumption,  as  allowed  by  the 
state  law. 

United  States  v.  Hill,  248  U.  S.  420,  39  S.  Ct.  143. 

Transporting  through  Dry  State  to  Wet  State. — It 

is  not  a  violation  of  the  Reed  Amendment  (Comp.  St.  § 
8739a)  to  carry  intoxicating  liquors  from  a  state  in  which 
sale  was  allowed  across  a  state  in  which  sale  was  prohibited, 
where  the  liquor  was  destined  for  a  third  state  in  which  sale 
was  permitted. 

Berryman  v.  United  States  (C.  C.  A.),  259  Fed.  208. 

United  States  v.  Gudger,  249  U.  S.  373,  39  Sup.  Ct.  323, 

63  L.  Ed.  — . 
Preyer  v.  United  States  (C.  C.  A.),  260  Fed.  157. 

Delivery  to  Minor — Webb-Kenyon  Act.— An  express 
company  is  guilty  of  a  crime  in  delivering  shipments  of  liq- 
uor from  another  state  to  a  minor  in  Alabama,  under  Gen. 
Acts  1915,  p.  43,  §  10,  and  the  Webb-Kenyon  Act  (U.  S. 
Comp.  St.  §  8739). 

Perry  v.  Southern  Exp.  Co.  (Ala.),  81  So.  619. 


130  TITLE  II— SEC.  3  OF  ACT 

As  Question  for  Jury. — Under  Ky.  St.  2569a  and  the 
Webb-Kenyon  Act  (Act  March  1,  1913,  c.  90,  37  Stat.  699) 
relative  to  the  transportation  of  intoxicating  liquor,  where 
a  carrier  transported  whisky  in  the  usual  course  of  business, 
without  knowing  or  believing  that  the  consignee  who  re- 
ceived it  in  territory  where  its  sales  was  forbidden  intended 
to  sell  it,  but  believing  that  it  was  for  his  personal  use,  its 
guilt  was  for  the  jury,  since  if  it  acted  upon  reasonable 
grounds  in  good  faith  after  such  investigation  as  ordinary 
care  required  and  was  misled,  it  was  not  liable. 

Adams  Exp.  Co.  v.  Commonwealth,   160  Ky.  66,   169 
S.  W.  603. 

Unbroken  Packages — Burden  of  Proof. — Regardless 
of  a  provision  casting  the  burden  upon  the  person  claiming 
the  article  seized  in  a  proceeding  to  confiscate  an  interstate 
shipment  of  liquor  side-tracked  within  this  state,  the  burden 
was  on  the  state  to  prove  that  the  shipment  was  in  fact  not 
interstate,  under  a  section,  providing  that  the  prohibitory  pro- 
visions "shall  not  apply  to  shipments  transported  by  any  com- 
mon carrier  of  unbroken  packages  of  intoxicating  liquor  in 
continuous  transit  through  this  gate  from  a  point  outside  of 
the  state  to  another  point  outside  of  the  state." 

State  v.  Great  Northern  R.  Co.,  98  Wash.  197,  167  Pac. 
103. 

Burden  of  Proof. — An  employee  on  a  train  of  an  inter- 
state carrier  passing  through  the  state  did  not  have  the  bur- 
den, under  Va.  Acts  1916,  c.  146,  to  prove  that  he  was  on  an 
interstate  journey  through  the  state;  although  ardent  spirits 
in  excess  of  one  quart  were  found  in  his  possession,  the  evi- 
dence for  the  state  showing  that  the  liquor  was  found  upon 
the  train  itself. 

Martin  v.  Commonwealth  (Va.),  100  S.  E.  836. 

Transportation  of  Wines  for  Sacramental  Purposes. 

— Under  the  law  making  it  lawful  for  any  common  carrier 
or  other  carrier  to  transport  wines  for  sacramental  purposes 
to  any  priest  or  minister,  a  sexton  of  a  church  or  communi- 
cant may  convey  either  for  or  without  hire  wine  to  the  priest 
or  minister. 

Liquor  Transp.  Cases  v.  State,  140  Tenn.  (13  Thomp- 
son) 582,  205  S.  W.  423. 


TITLE  II— SEC.  3  OF  ACT  131 

Possession. 

As  to  possession  as  evidence  of  crime,  see  post,  Sec- 
tion 33. 

Constitutionality. — That  part  of  the  "prohibition  law," 
which  declares  it  to  be  a  misdemeanor  for  one  to  have,  con- 
trol, or  possess  any  alcoholic,  spirituous,  malt,  or  intoxicat- 
ing liquors,  or  other  liquors  which,  if  drunk  to  excess,  will 
produce  intoxication,  is  not  unconstitutional. 

Cureton  v.  State,  135  Ga.  660,  70  S.  E.  332,  49  L.  R.  A., 

N.  S.,  182n. 
Delaney  v.  Plunkett,  146  Ga.  547,  550,  91  S.  E.  561,  L. 

R.  A.  1917D,  926n,  Ann.  Cas.  1917E,  685. 
Barbour  v.  State,  146  Ga.  667,  668,  92  S.  E.  70. 
Jackson  v.  State,  148  Ga.  351,  96  S.  E.  1001,  decided 

September  10,  1918. 
Saddler  v.  State,  148  Ga.  462,  97  S.  E.  79. 

Time  of  Acquiring. — Under  a  statute  making  it  unlawful 
to  have  in  possession  liquor  of  more  than  a  certain  amount, 
it  is  immaterial  that  it  was  lawfully  acquired  before  the  act 
went  into  effect. 

O'Rear  v.  State,  15  Ala.  App.  17,  72  So.  505. 

In  Residence. — A  person,  who  stores  liquors  in  a  garage 
disconnected  from  his  dwelling  house,  violates  a  law  pro- 
hibiting the  storing  of  liquors,  except  in  a  "private  residence," 
which  means  actual  dwelling  house,  and  not  all  buildings 
within  curtilage. 

People  v.  Labbe  (Mich.),  168  N.  W.  451. 

Storing  or  Keeping  Liquor  at  Other  than  Private 
House  or  Room. — One  who,  receiving  whisky  from  an  ex- 
press office,  placed  the  liquor  temporarily  in  a  room  in  house 
of  his  employer  until  he  could  get  off  at  dinner  and  carry  it 
to  his  own  house  in  another  part  of  town  did  not  thereby 
violate  an  ordinance  forbidding  "storing"  or  "keeping"  of 
liquor  at  another  place  than  his  house  or  private  room  al- 
though when  leaving  the  liquor  he  opened  the  package  and 
took  a  drink. 

Newberry  v.  Dorrah,  105  S.  C.  28,  89  S.  E.  402. 


132  TITLE  II— SEC.  3  OF  ACT 

In  a  prosecution  for  unlawfully  keeping  ardent  spirits  in  a 
place  other  than  a  bona  fide  home  for  personal  use  where  it 
appeared  that  defendant  lived  above  a  store  in  which  he  sold 
soft  drinks  and  had  stored  spirits  in  a  vacant  store  building 
owned  by  him  fronting  on  the  next  street,  and  also  in  a  gro- 
cery store  adjacent  to  the  building  wherein  he  lived,  connect- 
ing by  a  hallway  across  an  alley,  the  place  wherein  the  liquor 
was  stored,  was  not  within  the  curtilage  of  his  bona  fide 
residence. 

Pettus  v.  Commonwealth,  123  Va.  806,  96  S.  E.  161,  162. 

Temporary  Possession. — One  who  received  from  an- 
other, though  only  for  temporary  keeping,  a  grip  containing 
whisky,  with  knowledge  that  it  contained  more  than  a  quart, 
violated  a  law  prohibiting  the  having  in  possession  at  one 
time  of  more  than  one  quart  of  spirituous  liquor. 
State  v.  Willey  (Del.),  108  Atl.  79. 

But  if  accused  had  liquor  in  her  restaurant,  merely  keeping 
it  there  until  she  should  go  home  in  order  to  give  it  to  her 
sick  mother,  she  was  not  guilty  of  storing  liquor  since  "stor- 
ing" is  the  act  of  laying  away  against  a  future  time,  and  in- 
volves the  idea  of  continuity  or  habit. 

State  v.  Bradley,  109  S.  C.  411,  96  S.  E.  142. 

"Under  the  ruling  of  the  majority  of  the  court  in  Cohen 
v.  State,  7  Ga.  App.  5,  65  S.  E.  1096,  one  who  intentionally 
carries  whisky  to  his  place  of  business,  and  keeps  it  there  for 
any  length  of  time,  no  matter  for  what  reason  or  for  what 
purpose,  may  be  convicted  of  the  offense  of  keeping  intoxi- 
cating liquors  on  hand  at  his  place  of  business." 
Nowell  v.  State,  18  Ga.  App.  143,  88  S.  E.  909. 

Liquor  Placed  on  Premises  by  Third  Person. — The 

fact  that  whisky  was  placed  on  the  premises  of  a  soft  drink 
establishment  by  a  third  party,  with  the  owner's  knowledge, 
is  not  a  violation  of  a  statute,  condemning  the  keeping  or 
storing  of  prohibited  liquors  on  the  premises  of  a  person  en- 
gaged in  selling  beverages. 

Brown  v.  State  (Ala.  App.),  81  So.  366. 

Physical  Possession  Unnecessary. — Where  liquors 
were  found  in  defendant's  residence,  it  was  not  necessarily 


TITLE  II— SEC.  3  OF  ACT  133 

a  complete  defense  that  he  was  not  at  his  residence  when 
liquors  were  found,  or  since  they  were  put  in  residence,  as 
one  may  unlawfully  have,  control,  or  possess  liquor  without 
being  present  at  place  of  storage,  or  having  it  in  his  physi- 
cal possession. 

Hendrix  v.  State  (Ga.  App.),  100  S.  E.  55. 

Keeping  under  Joint  Ownership.— Where  defendant, 
who  with  his  son-in-law  and  their  respective  families  was 
going  on  a  fishing  trip,  purchased  liquor  for  use  of  the  party, 
the  son-in-law  furnishing  half  the  money,  held  that,  though 
defendant  be  considered  the  agent  of  the  son-in-law,  and  that 
title  to  half  the  liquor  passed  to  him  on  the  purchase,  yet 
defendant  was  guilty  of  unlawfully  keeping  intoxicating  liq- 
uor with  intent  to  barter,  exchange,  give  away,  furnish,  and 
otherwise  dispose  of  the  same,  in  violation  of  law,  for  the 
delivery  of  the  liquor  to  the  son-in-law  would  be  a  "disposal," 
etc. 

Banks  v.  State  (Ind.),  123  N.  E.  691. 

Possession  of  Apparatus  for  Distilling  or  Manufac- 
ture.— Under  a  provision  making  it  an  offense  to  knowingly 
permit  or  allow  any  one  to  have,  possess,  or  locate  on  his 
premises  any  apparatus  for  the  distilling  or  manufacturing 
of  the  liquors  and  beverages  specified  in  the  act,  neither 
"mash"  nor  "mobby"  is  a  part  of  the  "apparatus  for  the  dis- 
tilling or  manufacturing"  of  the  liquors,  etc. 

Davis  v.  State  (Ga.  App.),  100  S.  E.  782. 

Without  Knowledge. — That  a  lard  can  found  in  defend- 
ant's house  is  an  apparatus  for  distilling  and  manufacturing 
whisky  does  not  justify  a  conviction,  where  the  undisputed 
evidence  showed  that  such  lard  can  had  been  brought  to  the 
house  and  left  there  only  a  few  hours  before,  without  de- 
fendant's knowledge. 

Parker  v.  State  (Ga.  App.),  100  S.  E.  38. 

Keeping   Liquor    Stored    for   Sale.— To   keep    liquor 
stored  for  sale  is  to  keep  liquors  with  intent  to  sell  same. 
People  v.  Bullock,  173  Mich.  397,  139  N.  W.  43. 


134  TITLE  II— SEC.  3  OF  ACT 

General  Application  of  Prohibition. — Burns'  Ann.  St. 
of  Indiana  Supp.  1918,  §  8356d  (Acts  1917,  c.  4,  §  4),  pro- 
hibiting the  keeping  of  intoxicating  liquor  with  intent  to  sell, 
is  not  intended  to  apply  only  to  those  having  bonded  liquor, 
but  is  general  in  its  application. 

State  v.  Sarlin  (Ind.),  123  N.  E.  800. 

If  a  person  has  liquor  in  his  possession  for  the  purposes 
of  sale  he  is  guilty  of  the  crime  of  having  possession  of  liq- 
uor with  intent  to  sell  it,  whether  he  makes  a  sale  or  not. 
State  v.  Simons  (N.  C.),  100  S.  E.  239. 
Combs  v.  Commonwealth,  162  Ky.  86,  172  S.  W.  101. 

Amount  Immaterial. — "In  a  prosecution  for  having  in 
possession  spirituous  liquor  for  purposes  of  sale,  the  amount 
kept  on  hand  by  defendant  is  immaterial  as  far  as  his  guilt 
is  concerned ;  the  gist  of  the  offense  being  to  have  intoxicat- 
ing liquor  on  hand  for  the  purpose  of  sale." 
State  v.  Simmerson  (N.  C.),  98  S.  E.  784. 

Keeping    or    Maintaining    Club    Room    or    Place    Where 
Liquor  Is  Received  or  Kept  for  Use,  Gift,  or  Sale. 

A  provision  prohibiting  keeping  or  maintaining  any  club- 
room  or  other  place  in  which  liquors  are  received  or  kept  for 
use,  gift,  or  sale  does  not  refer  alone  to  a  clubroom,  but  in- 
cludes any  other  "place"  such  as  a  place  walled  off  by  a  can- 
vas tent  in  a  street ;  and  a  corporation  organized  for  a  legiti- 
mate purpose,  which  maintains  a  canvas  tent  in  a  street  and 
there  dispenses  intoxicating  liquor,  is  within  the  statute. 

Shideler  v.  Tribe  of  the  Sioux,  158  la.  417,  139  N.  W. 
897. 

Nor  is  it  necessary  that  there  shall  be  any  permanent  keep- 
ing; and  a  corporation  organized  for  a  legitimate  purpose, 
which  distributes  liquors  as  a  part  of  an  entertainment  to 
visitors  in  the  city,  violates  the  statute. 

Shideler  v.  Tribe  of  the  Sioux,  158  la.  417,  139  N.  \V. 
897. 

But  under  a  Texas  statute,  a  club  dispensing  intoxicating 
liquors  to  members  and  guests  in  good  faith  is  not  engaged  in 
the  business  of  selling  intoxicating  liquors. 

Country  Club  v.  State  (Tex.),  214  S.  W.  296. 


TITLE  II— SEC.  3  OF  ACT  135 

Liability  of  Member  of  Social  Club. — A  member  of  a 
bona  fide  social  club  which  has  paid  the  tax  required  by  law 
as  a  condition  precedent  to  keeping  on  hand  intoxicating  liq- 
uors for  the  use  of  its  members,  and  which  dispenses  such 
liquors  in  a  manner  prohibited  by  law,  is  not,  by  reason  of 
his  membership,  guilty  of  either  selling  intoxicating  liquors 
or  keeping  them  on  hand  at  his  place  of  business.  A  mem- 
ber of  such  a  club  would  not  be  guilty  of  either  offense  un- 
less it  be  shown  that  he  participated  in  some  way  in  the  crim- 
inal act.  Mere  knowledge  on  his  part  that  sales  of  liquor 
were  being  made,  and  his  failure  to  object  thereto,  would 
not  amount  to  a  crime. 

Wright  v.  State,  14  Ga.  App.  185,  80  S.  E.  544. 

"Any  one  or  more  of  its  members  who  engaged  in  the  sale 
of  liquors  are  as  amenable  to  the  law  as  if  one  of  them  had, 
while  in  the  clubrooms,  committed  murder  or  larceny  or  any 
other  criminal  offense.  Nor  does  it  make  any  difference  that 
no  profit  was  received  from  the  sale  of  the  liquor." 

Deal  v.  State,  14  Ga.  App.  121,  80  S.  E.  537,  541. 

Liability  of  Manager  of  Social  Club. — The  manager  of 
a  social  club,  who  orders  intoxicating  liquor  for  the  use  of 
its  members  and  who  either  directly  or  indirectly  procures, 
counsels,  commands,  aids  or  abets  in  the  making  of  a  sale  of 
such  liquors,  is  guilty  as  a  principal.  This  is  true  even 
though  such  manager  may  not  have  been  present  when  the 
particular  sale  was  made,  nor  had  knowledge  of  such  sale 
until  after  it  was  consummated. 

Deal  v.  State,  14  Ga.  App.  121,  80  S.  E.  537. 

Sale  by  Employee  of  Social  Club. — On  the  trial  of  an 
indictment  for  selling  liquor,  it  was  held  no  defense  that  the 
accused  sold  the  liquor  as  an  employee  of  the  social  club  to 
the  members  thereof.  Intoxicating  liquor  cannot  be  sold  in 
Georgia  by  an  individual  or  a  corporation  as  a  beverage,  and 
where  a  steward  of  a  social  club  sells  to  the  members  of  the 
club  intoxicating  liquor,  he  is  guilty  of  a  violation  of  what 
is  known  as  the  prohibition  law,  although  in  making  the  sale 
he  is  acting  solely  for  the  benefit  of  the  club. 

Rothschild  v.  State,  12  Ga.  App.  728,  78  S.  E.  201. 


136  TITLE  II— SEC.  3  OF  ACT 

One  employed  by  such  a  club  as  secretary  and  treasurer 
and  whose  only  duties  are  to  collect  the  dues  and  fees  from 
the  members,  keep  the  books,  and  look  after  the  correspond- 
ence for  the  club,  and  who  does  not  in  any  other  way  par- 
ticipate in  the  illegal  sale  of  intoxicating  liquor  by  the  club, 
is  not  guilty  either  of  selling  intoxicating  liquors  or  of  keep- 
ing them  on  hand  at  his  place  of  business. 

Wright  v.  State,  14  Ga.  App.  185,  80  S.  E.  544. 

Use  and  Property  Rights  in  Alcoholic  Liquors. 

"No  exceptions  being  made  in  the  act  other  than  those  ex- 
pressed, it  was  the  legislative  intent  to  not  only  forbid  the 
possession  but  to  abolish  property  rights  in  alcoholic  liquors 
within  the  confines  of  the  state  after  August  1,  1917,  aside 
from  the  exceptions  expressly  provided  for  in  the  act,  no 
matter  when  or  how  acquired,  for  wrhat  use  intended,  or  in 
what  place  kept  or  possessed." 

State  v.  Certain  Intoxicating  Liquors  (Utah),  172  Pac. 
1050,  1051. 

"It  necessarily  follows  that  the  very  purpose  and  intent 
of  the  act  was  to  preclude  the  right  to  use  intoxicating  liq- 
uor within  the  state  except  for  the  specific  purposes  in  the 
act  expressly  mentioned  and  reserved.  If  liquor  cannot  be 
legally  acquired  or  procured,  it  may  not  be  legally  used. 
While  the  law  is  somewhat  drastic  in  some  of  its  provisions 
— doubtless  it  was  so  intended  to  be — yet  in  view  of  the  tend- 
ency of  present  day  legislative  enactments  designed  to  pro- 
tect the  health,  safety,  morals  and  promote  the  general  wel- 
fare of  organized  society,  it  is  not  the  province  of  the  courts 
to  disregard  the  purpose  and  intent  of  the  legislative  so  long 
as  the  constitutional  rights  of  the  individual  have  not  been 
invaded." 

State  v.  Certain  Intoxicating  Liquors  (Utah),  172  Pac. 
1050,  1052. 

Intent  and  Knowledge  of  Intoxicating  Character. 

Intent  to  Do  Prohibited  Act  Sufficient. — The  only  in- 
tent necessary  to  constitute  a  violation  of  a  statute  prohibit- 
ing the  sale  of  intoxicating  liquors  without  a  license,  is  an 


TITLE  II— SEC.  3  OF  ACT  137 

intent  to  do  the  prohibited  act,  though  the  seller  believes  in 
good  faith  that  the  sale  is  not  prohibited  by  the  statute. 

State  v.  Country  Club  (Tex.  Civ.  App.),  173  S.  W.  570. 

Nor  does  a  statute  exempting  from  punishments  persons 
acting  in  ignorance  or  mistake  of  fact  without  criminal  in- 
tent, relieves  a  person  selling  a  prohibited  beverage. 

Hill  v.  State,  19  Ariz.  78,  165  Pac.  326. 

But,  as  said  in  another  case :  ''The  old  rule  that  original 
intent  must  accompany  a  crime  is  still  the  law,  even  as  to 
liquors,  so  far  as  we  have  been  able  to  ascertain.  There 
must  be  actual  or  constructive  intent  to  do  the  thing  which 
constitutes  the  crime ;  otherwise  there  is  no  criminal  act.  If 
it  can  be  said  that  the  liquor  in  this  case  was  in  the  posses- 
sion of  the  defendant  merely  because  it  was  in  his  shop, 
when  he  did  not  know  it,  still  such  possession,  not  being  con- 
scious, was  not  actual  and  intentional  possession,  as  con- 
templated by  the  statute." 

Jackson  v.  Gordon  (Miss.),  80  So.  785. 

Reliance  on  Brewer's  Guaranty  of  Nonintoxicating 
Character. — It  is  no  defense  to  sale  in  violation  of  prohi- 
bition, that  defendants  relied  on  a  guaranty  of  the  brewer 
that  the  beer  was  nonintoxicating,  and  investigation  showing 
it  did  not  contain  enough  alcohol  to  require  an  internal  rev- 
enue license. 

Hall  v.  State  (Ariz.),  165  Pac.  300. 

Intent  is  not  an  ingredient  of  the  offense  of  selling  intox- 
icating liquors  in  violation  of  statute  and  hence  defendant's 
testimony  that  the  liquor  which  he  sold  had  been  sold  to  him 
as  cider  under  a  guaranty  that  it  did  not  have  any  alcohol  in 
it  was  properly  excluded. 

Beiser  v.  State,  9  Ala.  App.  72,  63  So.  685. 

"Knowingly"  Construed. — "Knowingly,"  as  used  in  a 
statute  making  it  unlawful  for  any  person  to  knowingly  de- 
liver in  dry  territory  a  package  of  liquor  intended  for  sale, 
means  only  such  information  as  would  cause  a  person  of  or- 


138  TITLE  II— Ssc.  3  OF  ACT     • 

dinary  prudence  to  believe  that  the  liquor  was  intended  for 
sale  contrary  to  law. 

American  Exp.  Co.  v.  Commonwealth,  171  Ky.  1,  186 
S.  W.  887. 

But  knowledge  that  the  statement  required  on  the  package 
is  false  is  an  essential  of  the  crime. 

Goodman  v.  Commonwealth,  169  Ky.  542,  184  S.  W.  876. 

"It  is  entirely  immaterial  with  what  intention  an  unlawful 
purchase  of  prohibited  liquors  is  transported  from  one  to 
another  place  in  this  state,  and  it  is  not  a  defense  to  a  prose- 
cution for  transporting  such  liquors  that  the  party  trans- 
porting them  intends  to  use  such  liquors  for  a  lawful  pur- 
pose." 

Gilliland  v.  State  (Okla.  Cr.  App.),  179  Pac.  786. 

An  ordinance,  making  it  a  misdemeanor  to  transport  in- 
toxicating liquors  to  certain  prohibited  places,  construed  to 
apply  only  where  there  is  evidence  of  a  wrongful  intent  not 
where  the  act  is  merely  inadvertent. 

Ex  parte  Ahart,  172  Cal.  762,  159  Pac.  160. 

Imputed  Knowledge. — Under  a  statute  making  it  an  of- 
fense to  deliver  liquor  in  prohibition  territory,  "knowing 
that  the  required  statement  of  personal  use  is  false,"  such 
knowledge  may  be  imputed  to  one  who  has  not  obtained  of 
the  consignee  a  statement  that  the  liquor  is  for  personal  use, 
or  who  has  not  in  good  faith  relied  on  such  statement. 

Goodman  v.  Commonwealth,  169  Ky.  542,  184  S.  W.  876. 

Intended  Use  as  a  Beverage. — To  convict  one  of  a  sale 
of  spirituous  liquor,  it  is  necessary  for  the  jury  to  find  that 
accused  sold  the  liquor  with  intention  that  it  be  used  as  a 
beverage,  irrespective  of  the  subsequent  uses  to  which  the 
purchaser  put  it. 

State  v,  Hastings,  2  Boyce's  (25  Del.)  482,  81  Atl.  403. 

Intent  to  Use  as  Medicine. — Jamaica  ginger,  contain- 
ing more  than  1  per  cent  of  alcohol,  is  intoxicating  liquor 
within  the  meaning  of  Rev.  St.  c.  127,  §§  21,  22,  and  the  one 
having  it  in  possession  for  sale  violates  the  law,  regardless  of 


TITLE  II— SEC.  3  OF  ACT  139 

an  intent  of  such  person  that  it  should  be  used  only  as  a  medi- 
cine or  for  household  purposes,  and  not  as  a  beverage. 

State  v.  Intoxicating  Liquors  and  .Vessels   (Me.),  106 
Atl.  711. 

Scienter  Not  Element  of  Offense. — Scienter  is  not  an 
element  of  the  offenses  created  by  the  prohibition  law  of  most 
states.  So  in  a  prosecution  for  the  illegal  sale  of  malt  liquor, 
the  defendant  may  successfully  defend  by  showing  that  the 
liquor  he  sold  was  not  intoxicating,  but  not  by  showing 
merely  that  in  good  faith  he  thought  it  was  not  intoxicating. 
Battle  v.  State,  6  Ga.  App.  578,  65  S.  E.  333. 

In  a  prosecution  possessing  intoxicating  liquor,  it  is  not 
sufficient  that  the  defendant  hotel  porter  received  as  baggage 
of  an  incoming  guest  a  suit  case,  which  he  had  no  right  to  in- 
spect and  which  contained  liquor,  but  he  must  have  had  guilty 
knowledge  or  intent. 

State  v.  Cox,  91  Ore.  518,  179  Pac.  575. 

As  Question  of  Fact. — In  a  prosecution  for  being  in  con- 
trol or  possession  of  intoxicating  liquor,  where  defense  is  that 
defendant  had  no  knowledge  of  the  presence  of  the  liquor 
found  in  his  possession,  it  raises  a  question  of  fact,  and  it 
will  be  reasonably  presumed  that  he  had  knowledge  thereof. 
Jackson  v.  Gordon  (Miss.),  80  So.  785. 

Alcoholic  Medicines,  Extracts,  Sacramental  Wine. 

In  only  a  few  instances  have  the  courts  had  occasion 
to  construe  provisions  of  state  laws,  expressly  except- 
ing certain  articles.  But  so  far  as  bearing  on  Sec.  4  of 
Title  II  of  the  Federal  Act,  the  decisions  of  the  state 
courts  are  digested  here,  without  setting  out  again  the 
statutory  section. 

Intoxicating  Medicines — Dilution  by  Purchaser — Ex- 
cessive Use  by  Him. — The  lawful  act  of  compounding 
essence  of  Jamaica  ginger  in  form  which  could  not  be  used 
as  a  beverage,  and  selling  it  in  due  course  of  business,  could 
not  be  rendered  unlawful  by  the  conduct  of  a  purchaser  in 


140  TITLE  II— SEC.  3  OF  ACT 

diluting  the  medicine  and  taking  it  in  excessive  quantities 
and  with  excessive  frequency  whether  as  a  medicine  or  as  a 
beverage. 

Humphrey  v.  State  (Ala.  App.),  77  So.  82. 

Sale  as  Medicine  and  as  Beverage  Distinguished. — 

Where  a  person  has  the  right  to  sell  Jamaica  ginger,  the 
same  being  a  medicine  for  medicinal  purposes;  he  has  no 
right  to  sell  Jamaica  ginger,  a  spirituous  liquor,  even  if  it 
be  a  medicine,  to  be  used  as  a  beverage. 

State  v.  Hastings,  2  Boyce's  (25  Del.),  482,  81  Atl.  403. 

Absolute  Prohibition  Knows  No  Unexpressed  Ex- 
ceptions.— Where  the  constitution  forbids  the  sale  and  dis- 
position of  ardent  spirits,  ale,  beer,  and  wine  and  intoxicat- 
ing liquor  of  any  kind  to  any  person,  as  in  the  state  of  Ari- 
zona (Article  23,  constitution),  and  it  contains  no  excep- 
tions, as  that  it  may  be  prescribed  and  sold  as  a  medicine, 
or  for  medicinal  purposes,  neither  doctors  nor  druggists 
nor  any  one  else  may  sell  or  dispose  of  any  of  the  named 
or  described  liquors  as  such,  or  when  compounded  as  a 
medicine.  It  is  not  a  regulatory  provision,  but  one  of  out- 
lawry. It  is  one  of  suppression  and  not  one  of  supervision. 
The  fact  that  ardent  spirits  are  mixed  with  other  ingredi- 
ents and,  as  thus  compounded,  labeled  Jamaica  ginger  and 
sometimes  used  for  medicinal  purposes,  does  not  change  the 
situation. 

Cooper  v.  State,  19  Ariz.  486,  172  Pac.  276,  citing 
Brown  v.  State,  17  Ariz.  314,  152  Pac.  578. 

Troutner  v.  State,  17  Ariz.  506,  154  Pac.  1048,  L.  R. 
A.  1916D,  262. 

Hall  v.  State  (Ariz.),  165  Pac.  300. 

"Quart  a  Month"  Law  Construed. — Under  a  state 
law  permitting  receipt  of  only  one  quart  of  distilled  liquor 
"not  oftener  than  once  a  month,"  one  who  received  a  quart 
November  29th,  and  another  December  23rd  following 
would  be  guilty,  in  view  of  Code  1904,  §  5,  providing  that, 
unless  otherwise  expressed,  the  word  "month"  shall  mean 
calendar  month. 

Cochran  v.  Commonwealth,  122  Va.  801,  94  S.  E.  329. 


TITLE  II— SEC.  3  OP  ACT  141 

Sale  of  Flavoring  Extracts  for  Beverages. — A  grocer 
who  sold  for  beverage  purposes  flavoring  extracts  contain- 
ing from  30  to  90  per  cent  alcohol,  claimed  to  be  legitimate 
food  products,  violated  the  law  though  the  sales  were  in 
quantities  less  than  required  to  produce  drunkenness. 

Wine  for  Sacramental  Purposes. 

Receiving  "Altar  Wine"  from  Carrier. — A  state  law 
prohibiting  the  receiving  of  liquors,  the  sale  of  which  is 
prohibited  by  the  laws  of  this  state,  from  a  common  car- 
rier, does  not  make  it  an  offense  for  a  Roman  Catholic 
priest  to  receive  altar  wine  to  be  used  solely  for  sacramental 
purposes  in  divine  worship. 

De   Hasque   v.   Atchison,   etc.,   R.    Co.    (Okla.),    173 
Pac.  73. 

The  provisions  of  section  46,  art.  25,  of  the  Constitution 
of  Oklahoma  (section  410,  Wms.  Anno.),  prohibiting  the 
sale  and  transportation  of  intoxicating  liquors,  does  not  ap- 
ply to  altar  wine  to  be  used  solely  for  sacramental  purposes 
in  divine  worship,  although  such  wine  be  capable  of  use  as 
a  beverage,  and,  if  drunk  in  sufficient  quantities,  will  pro- 
duce intoxication. 

De  Hasque  v.  Atchison,  etc.,  R.  Co.  (Okla.),  173  Pac. 
73. 


TITLE  II— SECS.  7-8 

Physicians'  Prescriptions— Permits — Physical  Examina- 
tion— Medical  Necessity — Limit  of  Amounts — Cancel- 
lation by  Pharmacist — Records  of  Pharmacists  and 
Physicians. 

SEC.  7.  No  one  but  a  physician  holding  a  permit  to 
prescribe  liquor  shall  issue  any  prescription  for  liquor. 
And  no  physician  shall  prescribe  liquor  unless  after 
careful  physical  examination  of  the  person  for  whose 
use  such  prescription  is  sought,  or  if  such  examination 
is  found  impracticable,  then  upon  the  best  information 
obtainable,  he  in  good  faith  believes  that  the  use  of  such 
liquor  as  a  medicine  by  such  person  is  necessary  and 
will  afford  relief  to  him  from  some  known  ailment. 
Not  more  than  a  pint  of  spirituous  liquor  to  be  taken  in- 
ternally shall  be  prescribed  for  use  by  the  same  person 
within  any  period  of  ten  days  and  no  prescription  shall 
be  filled  more  than  once.  Any  pharmacist  filling  a  pre- 
scription shall  at  the  time  indorse  upon  it  over  his  own 
signature  the  word  "canceled,"  together  with  the  date 
when  the  liquor  was  delivered,  and  then  make  the  same 
a  part  of  the  record  that  he  is  required  to  keep  as  here- 
in provided. 

Every  physician  who  issues  a  prescription  for  liquor 
shall  keep  a  record,  alphabetically  arranged  in  a  book 
prescribed  by  the  commissioner,  which  shall  show  the 
date  of  issue,  amount  prescribed,  to  whom  issued,  the 
purpose  or  ailment  for  which  it  is  to  be  used  and  direc- 
tions for  use,  stating  the  amount  and  frequency  of  the 
dose. 


TITLE  II — Sees.  7-8  OF  ACT  143 

Prescription  Blanks— Form — Furnished  by  Commissioner 
—Return  of  Stubs  and  Unused  Blanks— Emergency 
Cases — Record  and  Report. 

SEC.  8.  The  commissioner  shall  cause  to  be  printed 
blanks  for  the  prescriptions  herein  required,  and  he 
shall  furnish  the  same,  free  of  cost,  to  physicians  hold- 
ing permits  to  prescribe.  The  prescription  blanks  shall 
be  printed  in  book  form  and  shall  be  numbered  con- 
secutively from  one  to  one  hundred,  and  each  book  shall 
be  given  a  number,  and  the  stubs  in  each  book  shall 
carry  the  same  numbers  as  and  be  copies  of  the  pre- 
scriptions. The  books  containing  such  stubs  shall  be 
returned  to  the  commissioner  when  the  prescription 
blanks  have  been  used,  or  sooner,  if  directed  by  the 
commissioner.  All  unused,  mutilated,  or  defaced  blanks 
shall  be  returned  with  the  book.  No  physician  shall 
prescribe  and  no  pharmacist  shall  fill  any  prescription 
for  liquor  except  on  blanks  so  provided,  except  in  cases 
of  emergency,  in  which  event  a  record  and  report  shall 
be  made  and  kept  as  in  other  cases. 

Constitutionality  of  Provision. — The  Alabama  law 
regulating  the  issuance  of  prescriptions  for  intoxicating  liq- 
uors, is  not  objectionable  as  interfering  with  the  personal 
liberty  of  a  physician  since  it  embraces  all  of  his  class;  it 
being  competent  for  the  Legislature,  in  the  interest  of  reg- 
ulating and  prohibiting  the  liquor  traffic,  to  pass  such  bill. 

McAllister  v.  State,  156  Ala.  122,  47  So.  161. 

"Nor  is  the  Michigan  law  invalid  because  the  original  act, 
while  prohibiting  liquor  to  be  sold  by  merchants,  permitted 
it  to  be  sold  by  druggists  for  medicinal,  mechanical,  or  scien- 
tific purpose.  The  contention  that  this  was  an  unlawful 
discrimination  is  answered  by  Kidd  v.  Pearson,  128  U.  S.  1, 
9  Sup.  Ct.  6,  32  L.  Ed.  346,  2  Inters.  Com.  Rep.  232 ;  Rippey 
v.  Texas,  193  U.  S.  504,  24  Sup.  Ct.  516,  48  L.  Ed.  767 ;  Loyd 
v.  Dollison,  194  U.  S.  445,  24  Sup.  Ct.  703,  48  L.  Ed.  1065. 
Those  cases  show  that  the  state  may  prohibit  the  sale  of 


144  TITLE  II — Sees.  7-8  OF  ACT 

liquor  absolutely  or  conditionally ;  may  prohibit  the  sale  as 
a  beverage,  and  permit  the  sale  for  medicinal  and  like  pur- 
pose ;  that  it  may  prohibit  the  sale  by  merchants  and  permit 
the  sale  by  licensed  druggists." 

Eberle  v.  Michigan,  232  U.  S.  700,  34  Sup.  Ct.  464. 

The  Indiana  Prohibition  Law  (Acts  1917,  c.  4)  is  not  un- 
constitutional in  giving  the  right  to  registered  pharmacists 
to  deal  in  intoxicants  under  certain  restrictions,  and  because 
those  who  have  liquors  manufactured  in  the  state  which  are 
in  bond  may  have  possession,  pay  tax,  and  dispose  of  such 
liquors  outside  of  the  state,  since  the  "privileges  and  immu- 
nities" section  of  the  state  Constitution  (article  1,  §  23),  the 
"class"  section  (article  1,  §  23),  and  the  "general  law"  sec- 
tion (article  4,  §  22),  are  not  violated  if  an  act  is  reason- 
ably designed  to  protect  the  health,  morals,  or  welfare  of 
the  public. 

Schmitt  v.  Cook  Brewing  Co.  (Ind.),  120  N.  E.  19,  20. 

Validity  of  Provision — Title  of  Act. — Michigan  Pub. 
Acts  1889,  No.  207,  entitled  "An  act  to  prohibit  the  manu- 
facture, sale,  keeping  for  sale,  giving  away,  or  furnishing 
of  vinous,  malt,  brewed,  fermented,  spirituous  or  intoxicat- 
ing liquors,"  etc.,  amended  by  Pub.  Acts  1911,  No.  261,  with- 
out altering  the  title  to  provide  that  any  physician  who  pre- 
scribes any  intoxicating  liquors  for  any  person  whom  he 
knows,  or  has  good  reason  to  believe,  intends  to  use  them 
in  whole  or  in  part  as  a  beverage,  or  contrary  to  the  provi- 
sions of  the  act,  or  without  a  diagnosis  showing  that  liquor 
is  indicated,  shall  be  guilty,  is  not  invalid  as  attempting  to 
regulate  the  practice  of  medicine,  and  as  subjecting  physi- 
cians to  a  penalty,  without  giving  notice  in  the  title. 

People  v.  Humphrey,   194  Mich.  10,  160  N.  W.  445, 
446. 

Revocation  of  Authority  for  Violations  of  Law,— 

Initiative  Measure  No.  3  (Laws  1915,  p.  6)  §  8,  providing, 
among  other  things,  that  it  shall  be  unlawful  for  a  physician, 
after  he  has  been  convicted  a  second  time  of  a  violation  of 
any  of  the  provisions  of  the  act,  to  thereafter  write  any  pre- 


II — SECS.  7-8  OF  Aci  145 

scriptions  for  furnishing,  delivery,  or  sale  of  intoxicating 
liquor,  is  valid. 

State  v.  Emonds  (Wash.),  182  Pac.  584. 

Disqualification  for  Permit — Ex  Post  Facto  Laws. 

— A  state  law  providing  that  a  county  auditor  shall  not  is- 
sue a  permit  to  any  druggist  who  has  been  convicted  of 
violating  any  of  the  liquor  laws  of  the  state,  and  requiring 
applicant  to  state  in  his  application  that  he  has  not  been 
convicted  of  violating  any  of  the  liquor  laws,  although  ap- 
plied so  as  to  prohibit  issuing  of  permits  to  druggists  who 
have  violated  prior  laws,  are  not  ex  post  facto  in  their  na- 
ture; the  disqualification  not  being  an  additional  punish- 
ment for  past  offenses. 

Rosenoff  v.  Cross,  95  Wash.  525,  164  Pac.  236. 

"Pharmacist"  or  Druggist  Defined. — The  words 
druggist  or  pharmacist,  as  used  in  a  statute  permitting  the 
sale  of  intoxicating  liquors  by  druggists  or  pharmacists 
only,  mean  such  druggists  or  pharmacists  as  are  actively 
engaged  in  business,  and  the  possession  of  an  excess  quan- 
tity of  liquor  by  a  registered  pharmacist  not  engaged  in 
business  is  unlawful  even  though  acquired  before  such  law 
became  effective. 

State  v.  Martin,  92  Wash.  366,  159  Pac.  88. 

"Patient"  Construed. — A  statute  making  it  unlawful 
for  any  physician  to  furnish  any  person  a  prescription  for 
any  kind  of  intoxicating  liquors  except  to  patients  of  such 
physician,  where  the  patient  is  afflicted  with  some  disease 
and  his  condition  is  such  that  in  the  opinion  of  the  physi- 
cian, the  taking  of  intoxicating  liquors  would  be  beneficial, 
applies  where  a  person  himself  seeks  the  advice  of  the 
physician  and  states  his  ailments,  and  such  person  is  a  "pa- 
tient" within  the  meaning  of  the  act. 

State  v.  Morton,  38  S.  D.  504,  162  N.  W.  155. 

But  a  state  law  providing  that  it  shall  be  unlawful  for 
any  physician  to  furnish  a  prescription  for  any  kind  of  in- 
toxicating liquors  to  be  used  as  a  beverage  or  for  any  pur- 

—10 


146  TITLE  II— Sees.  7-8  OF  ACT 

pose  except  for  medicinal  purposes  in  case  of  actual  sick- 
ness, applies  only  to  case  where  the  application  for  the 
prescription  is  made  by  some  one  other  than  the  person 
alleged  to  be  ill. 

State  v.  Morton,  38  S.  D.  504,  162  N.  W.  155. 

Sale  by  Physician  Not  a  Druggist. — Where  a  physi- 
cian who  was  not  a  druggist  or  a  registered  pharmacist  and 
had  not  filed  bond  as  such,  sold  intoxicating  liquors  in  local 
option  territory,  he  was  guilty  of  violating  the  law,  though 
the  liquor  was  needed,  intended  and  used  for  medicinal 
purposes. 

People  v.  Bell,  170  Mich.  675,  137  N.  W.  107. 

By  Person  Not  Authorized  to  Sell  Medicine. — It  is 
no  defense  in  a  prosecution  for  unlawfully  selling  spirit- 
uous liquor,  that  the  liquor  was  sold  as  a  medicine,  where 
accused  was  not  authorized  to  sell  medicine. 

State  v.  Buckman,  2  Boyce's  (25  Del.)  591,  83  Atl.  938. 

Prosecution  of  Druggist. — A  druggist  who  makes  a 
sale  of  intoxicating  liquors  not  in  compliance  with  the  terms 
of  the  exception  in  his  favor  to  the  general  prohibition 
against  sales  without  a  state  license,  may  be  prosecuted  un- 
der the  ordinary  and  general  indictment  for  selling  with- 
out a  state  license. 

State  v.  Wills,  73  W.  Va.  446,  80  S.  E.  783. 

Offense  of  Unlawfully  Issuing  Prescription  Covers 
Invalid  Prescription. — Where  a  statute  declares  that  any 
physician  who  shall  make  any  prescription  to  any  person 
for  intoxicating  liquors  to  be  used  other  than  for  medicinal 
purposes  shall  be  deemed  guilty  of  a  misdemeanor,  and 
provides  the  character  of  prescription  which  will  protect 
a  druggist  in  making  sales  of  intoxicants,  a  physician  who 
unlawfully  issued  a  prescription  for  intoxicating  liquor 
though  he  wrote  the  prescription  in  such  a  manner  that 
the  druggist  who  filled  it  was  not  protected,  is  neverthe- 
less guilty;  the  word  prescription  meaning  a  direction  of 
remedy  or  remedies  for  a  disease  and  the  manner  of  using 


TITLE  II— Sees.  7-8  OF  ACT  147 

them,  and  not  necessarily  a  valid  prescription  which  would 
protect  the  druggist  who  filled  it. 

State  v.  Nicolay  (Mo.  App.),  184  S.  W.  1183. 

Good  Faith  Essential. — A  person  selling  spirituous 
liquor  as  medicine  must  make  the  sale  in  good  faith  as  such 
and  he  must  use  reasonable  care  and  prudence  to  ascertain 
for  what  purpose  it  is  to  be  used. 

State  v.  Hastings,  2  Boyce's  (25  Del.)  482,  81  Atl.  403. 

The  question  of  good  faith  enters  into  every  sale  of  al- 
cohol by  a  registered  druggist  or  pharmacist,  notwithstand- 
ing the  formal  sufficiency  of  his  record,  the  record  of  sales 
not  being  conclusive  under  a  statute  providing  that  it  shall 
be  unlawful  to  sell  intoxicating  liquors  except  as  provided, 
and  requiring  druggist  to  keep  a  "true"  and  "exact"  record 
of  sales. 

State  v.  Holland,  99  Wash.  645,  170  Pac.  332. 

Good  Faith  of  the  Essence. — In  prosecution  of  physi- 
cian for  furnishing  prescription  for  intoxicating  liquors, 
the  essence  is  whether  or  not  a  physician  acted  in  good 
faith  in  giving  the  prescription  to  his  patient. 

State  v.  Morton,  38  S.  D.  504,  162  N.  W.  155. 

Physician  Cannot  Keep  for  Sale  or  Engage  in  Traf- 
fic.— Though  a  physician  is  entitled  to  keep  intoxicating 
liquors  on  his  premises  for  use  in  his  practice,  he  does  not 
have  the  right  to  keep  liquors  for  sale  and  engage  in  that 
traffic. 

State  v.  Chamberlain,  180  la.  685,  163  N.  W.  428,  429. 

Sale  of  Liquor  in  Stock  with  Business. — If  a  drug- 
gist, in  the  legitimate  pursuit  of  his  business,  had  a  right 
to  purchase  from  the  dispensary  such  liquors  as  were 
needed  in  compounding  medicines,  to  keep  them  as  a  part 
of  his  stock  of  drugs,  and  when  so  compounded  in  good 
faith,  to  sell  them  without  liability;  it  necessarily  follows 
that,  if  having  them,  he  desires  to  sell  out  his  entire  busi- 
ness to  another,  he  might  do  so  without  violating  the  law; 


148  TITLE  II— Sees.  7-8  OF  ACT 

and  the  mere  fact  that  such  liquors  were  a  part  of  the  stock 
of  goods  for  which  the  note  was  given  did  not  render  the 
note  illegal  and  void. 

Long  v.  Holley,  177  Ala.  508,  58  So.  264. 

Necessity  for  Prescription  in  All  Cases. — A  licensed 
druggist  cannot  sell  intoxicating  liquor  to  a  practicing  phy- 
sician, except  upon  the  written  prescription  of  a  practicing 
physician  in  good  standing  in  his  profession  and  not  of  in- 
temperate habits. 

State  v.  Davis,  68  W.  Va.  142,  69  S.  E.  639,  Ann.  Cas. 

1912A,  996,  32  L.  R.  A.,  N.  S.,  501. 
State  v.  Tullos,  135  La.  640,  65  So.  870. 

What  Prescription  Should  Contain. — In  West  Vir- 
ginia a  prescription  must  state  substantially  the  following, 
viz. :  (1)  The  name  of  the  person  for  whom  prescribed;  (2) 
the  kind  and  quantity  of  liquor;  (3)  that  it  is  absolutely 
necessary  as  a  medicine  for  such  person ;  and  that  it  is  not 
to  be  used  as  a  beverage. 

State  v.  Davis,  68  W.  Va.  142,  69  S.  E.  639,  Ann  Cas. 
1912A,  996,  32  L.  R.  A.,  N.  S.,  501. 

A  written  order  addressed  to  a  licensed  druggist  and 
signed  by  a  practicing  physician,  in  the  following  words, 
viz.  "Send  me  OJ  spts.  whisky  and  oblige.  12-12-09" — is 
not  a  lawful  prescription  for  intoxicating  liquor,  and  a  sale 
made  thereon  is  unlawful. 

State  v.  Davis,  68  W.  Va.  142,  69  S.  E.  639,  Ann.  Cas. 
1912A,  9%,  32  L.  R.  A.,  N.  S.,  501. 

Failure  to  Attest  Prescription.— Where  a  druggist  in 
making  sales  of  liquors  under  permits,  omitted  to  attest  two 
of  them,  as  required  by  law,  the  sales  were  thereby  rendered 
illegal,  though  made  in  good  faith,  and  though  the  permit 
holder  falsely  tested  at  the  date  shown  thereon  as  required 
by  law,  and  hence  such  sales  rendered  defendant's  business 
subject  to  injunction  as  a  liquor  nuisance. 
Wachal  v.  Davis,  145  N.  W.  867. 

Failure  to  Take  Affidavit  of  Purchaser. — A  druggist 
who  keeps  alcohol  for  no  other  purpose  than  for  medicinal 


TITLE  II— Sees.  7-8  OF  ACT  149 

and  external  uses,  and  in  selling  it  on  a  prescription  and  for 
medicinal  purposes,  has  failed  to  take  the  required  affidavit 
from  the  purchaser,  may  be  guilty  of  violating  the  statute, 
and  may  have  committed  a  crime,  but  he  has  not  committed 
the  specific  crime  of  keeping  intoxicating  liquors  for  sale 
as  a  beverage. 

State  i>.  Lesh,  27  N.  D.  165,  145  N.  W.  829. 

False  Statement  by  Purchaser. — A  druggist  who  has 
complied  with  statute  in  making  sale  of  alcohol  commits 
no  offense  against  the  law  because  person  to  whom  he  sold 
it  made  false  statement  in  violation  of  statute  for  purpose 
of  procuring  it. 

State  v.  McCasky,  97  Wash.  401,  166  Pac.  1163. 

Identification  of  Prescription. — Where,  on  the  trial 
of  a  physician  for  prescribing  intoxicating  liquors  with  in- 
tent to  evade  the  prohibition  law,  the  testimony  identified  a 
prescription  as  one  that  the  physician  had  given  to  prosecut- 
ing witness  in  a  fictitious  name,  the  prescription  was  prop- 
erly received  in  evidence,  though  there  was  no  allegation 
in  the  information  of  a  prescription  in  the  fictitious  name. 

State  v.  Terry,  128  La.  680,  55  So.  15. 

Production  of  Prescription  in  Evidence. — A  phy- 
sician on  trial  for  prescribing  intoxicating  liquors  with  in- 
tent to  evade  the  prohibition  law  may  not  complain  of  the 
court's  refusal  to  require  the  production  of  the  prescrip- 
tions relied  on  by  the  state  to  establish  its  case. 

State  v.  Terry,  128  La.  680,  55  So.  15. 

Written  Prescriptions  Not  Privileged. — The  written 
prescriptions  of  practicing  physicians  on  which  a  licensed 
druggist  has  made  sales  of  intoxicating  liquors,  and  which 
he  has  preserved  in  his  possession,  as  the  statute  directs, 
are  not  his  private  papers  and  documents  within  the  mean- 
ing of  the  constitutional  guaranty  against  compulsory  self- 
crimination. 

State  v.  Davis,  68  W.  Va.  142,  69  S.  E.  639,  Ann.  Cas. 
1912A,  996,  32  L.  R.  A.,  N.  S.,  501. 


150  TITLE  II— Sees.  7-8  OF  ACT 

Such  prescriptions  are  quasi  public  documents  and  the 
constitutional  privilege  is  not  violated  by  compelling  a  drug- 
gist who  stands  for  unlawfully  selling  spirituous  liquors, 
to  produce  them  in  court  in  order  that  they  may  be  used 
as  evidence  against  him  on  his  trial. 

State  v.  Davis,  68  W.  Va.  142,  69  S.  E.  639,  Ann.  Cas. 
1912A,  996,  32  L.  R.  A.,  N.  S.,  501. 

Sale  to  Be  Drunk  on  Premises  as  Beverage. — Where 
the  law  provides  that  it  shall  be  unlawful  for  any  registered 
pharmacist  to  sell  or  give  away  any  intoxicating  liquor 
whatever  to  be  used  as  a  beverage  or  drank  on  the  prem- 
ises, and  that  no  registered  pharmacist  who  shall  allow  in- 
toxicating liquors  to  be  drank  on  the  premises  or  in  any 
room  adjoining  the  premises,  the  selling  or  giving  of  in- 
toxicating liquor  to  be  drank  as  a  beverage  anywhere  by  a 
registered  pharmacist,  is  unlawful  and  also  the  selling  or 
giving  of  such  liquors  to  be  drank  on  the  premises  as  a 
beverage  or  otherwise. 

State  v.  Julius,  29  S.  D.  638,  137  N.  W.  590. 

Whisky  Lawfully  Purchased  on  Prescription  May 
Be  Carried  Away. — One  who  secures  whisky  from  a  drug- 
gist upon  a  lawful  prescription  may  carry  it  on  his  person 
for  a  reasonable  time  and  until  in  the  natural  course  of 
events  and  conveniently  he  reaches  his  private  residence, 
notwithstanding  a  provision  prohibiting  keeping  liquor  in 
any  place  except  private  residences.  Where  accused  se- 
cured liquor  on  physician's  prescription,  his  keeping  it  on 
his  person  from  6  o'clock  in  the  evening  until  8  o'clock  did 
not  exceed  a  reasonable  time,  although  he  had  it  on  his  per- 
son in  a  temperance  bar  in  a  hotel  in  which  he  had  his  room. 

People  v.  Harris  (Mich.),  168  N.  W.  447. 

Law  Allowing  Shipment  to  Physician  Does  Not  Al- 
low Sale  by  Him.— A  provision  excepting  from  the  pro- 
hibition law  the  shipment  or  delivery  to  physicians  of  liq- 
uors in  unbroken  packages  not  exceeding  five  gallons  at  any 
one  time,  does  not  permit  liquor  to  be  sold  by  physicians. 
Van  Winkle  v.  State,  4  Boyce's  (27  Del.)  578,  91  Atl. 
385. 


TITLE  II— SECS.  7-8  OF  ACT  151 

Unlawful  Seizure— Return.— Where  a  druggist  ob- 
tained liquors  to  be  sold  in  compliance  with  the  law,  and 
such  liquors  were  unlawfully  seized,  he  had  a  right  to  their 
return,  though  he  had  in  the  meantime  sold  his  drug  busi- 
ness. 

State  v.  Snell,  99  Wash.  195,  169  Pac.  320. 

Reclaiming  Property  Seized.— Under  a  law  regulat- 
ing the  sale  and  use  of  intoxicating  liquor,  a  registered 
pharmacist  not  actually  engaged  in  business,  failing  to  re- 
claim an  excess  quantity  of  liquors  seized  by  showing  that 
he  intends  to  engage  in  the  druggist  business,  cannot  re- 
claim them  on  the  ground  that  he  intends  to  keep  them  for 
private  consumption. 

State  v.  Martin,  92  Wash.  366,  159  Pac.  88. 

Presumption  of  Unlawful  Sale. — When  a  sale  of  in- 
toxicating liquors  is  proven  to  have  been  made  by  a  li- 
censed druggist,  it  is  presumed  to  have  been  unlawfully 
made,  and  the  burden  is  then  cast  upon  him  to  rebut  such 
presumption. 

State  v.  Davis,  68  W.  Va.  142,  69  S.  E.  639,  Ann.  Cas. 
1912A,  9%,  32  L.  R.  A.,  N.  S.,  501. 

Intent  to  Break  Law  Not  Essential. — The  law  relat- 
ing to  the  sale  of  intoxicants  by  a  pharmacist  being  prohib- 
itory and  authorizing  the  sale  only  under  certain  conditions, 
an  intent  to  disobey  the  law  is  not  essential  to  violation, 
and  a  pharmacist  who  sells  intoxicants  is  bound  at  his  peril 
to  see  that  all  provisions  relating  to  the  sale  are  complied 
with. 

Milhiser  v.  Gandrup  (la.),  146  N.  W.  843. 

See  also,  Cooper  v.  State,  19  Ariz.  486,  172  Pac.  276. 

Necessity  That  Pharmacist  Be  Licensed  by  State. 
—Two  partners  engaged  in  the  drug  business  neither  of 
whom  possessed  a  pharmacist's  license,  and  who  had  no  li- 
censed pharmacist  in  their  employ,  were  not  druggists  with- 
in the  statute,  and  had  no  right  to  sell  whisky  on  a  prescrip- 
tion, or  without  it. 

State  v.  O'Kelley,  258  Mo.  345,  167  S.  W.  980,  52  L. 

R.  A.,  N.  S.,  860n. 
See  ante,  Sec.  6. 


152  TITLE  II— Sees.  7-8  OF  ACT 

Assigned  License. — No  assignment  of  a  druggist's  li- 
cense will  protect  the  assignee  thereof  in  making  sale  of 
spirituous  liquors  unless  first  assented  to  on  proper  appli- 
cation by  the  authorities,  authorized  to  grant  the  original 
license.  These  statutes  are  mandatory  and  strict  compli- 
ance therewith  is  required. 

State  v.  Ross,  70  W.  Va.  549,  74  S.  E.  670,  39  L.  R.  A., 
N.  S.,  814n. 

Expired  Permit  Void. — Under  a  law  providing  that 
druggists  desiring  to  ship  intoxicating  liquors  into  the  state 
shall  first  secure  a  permit  therefor  which  shall  be  void  30 
days  from  the  date  of  issue,  a  permit  to  a  druggist  to  ship 
intoxicating  liquors  into  the  state  was  absolutely  void  after 
30  days  and  liquor  was  contraband,  although  permit  was 
good  when  shipment  started. 

State  v.  Great  Northern  R.  Co.,  101  Wash.  464,  172 
Pac.  546. 

Destroying  Character  of  Intoxicating  Liquor. — Un- 
der a  statute,  providing  that  druggists  holding  permits  may 
sell  and  dispense  intoxicating  liquors,  but  forbidding  the 
sale  of  any  preparation  or  compound  under  any  name, 
form,  or  device  which  may  be  used  as  a  beverage  and  which 
is  intoxicating  in  its  character,  if  the  character  of  an  in- 
toxicating liquor  is  so  destroyed  that  it  could  not  be  used 
for  a  beverage,  and  it  becomes  in  fact  a  medicine  to  be  used 
for  disease  and  of  such  a  character  that  it  could  not  be  used 
as  an  intoxicating  drink,  its  sale  would  not  be  an  offense. 
Berner  v.  McHenry,  169  la.  483,  151  N.  W.  450. 

Frequency  of  Applications  for  Prescriptions. — In  a 

prosecution  of  a  physician  for  having  prescribed  whisky 
with  good  reason  to  believe  that  the  patient  intended  to  use 
it  as  a  beverage,  it  was  competent  to  prove,  not  only  the 
frequency  of  the  applications  for  prescriptions  made  by  the 
patient,  but  the  ease  with  which  another  had,  by  telephone, 
secured  a  prescription  for  a  like  amount  of  liquor,  which  he 
directed  be  given  the  first  patient. 

People  v.  Humphrey,  194  Mich.   10,   160  N.  W.  445, 
446. 


TITLE  II— Sees.  7-8  OF  ACT  153 

Liability  of  Partner  for  Illegal  Sale  by  Copartner. 

— A  member  of  a  partnership,  which  is  engaged  in  the  drug 
business,  although  neither  of  the  partners  nor  any  of  their 
employees  are  licensed  pharmacists,  is  liable  for  a  sale  of 
intoxicating  liquor  made  by  his  copartner,  although  he  was 
not  present  at  the  time. 

State  v.  O'Kelley,  258  Mo.  345,  167  S.  W.  980,  52  L. 
R.  A.,  N.  S.,  860n. 

Search  Warrant  against  Druggist. — That  persons  ac- 
cused of  illegal  sales  of  intoxicating  liquors  are  druggists, 
does  not  exempt  them  from  operation  of  a  law  providing 
for  issuance  of  search  warrant  on  affidavit  of  probable 
cause  to  believe  illegal  sales  are  being  made. 

State  v.  Gordon  (Wash.),  163  Pac.  772. 


TITLE  II— SEC.  13 

Carriers — Records  of  Shipments— Permit  of  Consignee- 
Record  of  Delivery — Oath  of  Consignee— Identifica- 
tion—Name  and  Address. 

SEC.  13.  It  shall  be  the  duty  of  every  carrier  to  make 
a  record  at  the  place  of  shipment  of  the  receipt  of  any 
liquor  transported,  and  he  shall  deliver  liquor  only  to 
persons  who  present  to  the  carrier  a  verified  copy  of  a 
permit  to  purchase,  which  shall  be  made  a  part  of  the 
carrier's  permanent  record  at  the  office  from  which  de- 
livery is  made. 

The  agent  of  the  common  carrier  is  hereby  authorized 
to  administer  the  oath  to  the  consignee  in  verification 
of  the  copy  of  the  permit  presented,  who,  if  not  person- 
ally known  to  the  agent,  shall  be  identified  before  the 
delivery  of  the  liquor  to  him.  The  name  and  address  of 
the  person  identifying  the  consignee  shall  be  included  in 
the  record. 

Validity  of  Requirement. — A  provision  requiring  a  rec- 
ord to  be  kept  of  the  receipt  and  delivery  of  shipments  of 
intoxicating  liquor  to  be  open  for  inspection  by  any  officer 
or  citizen  during  business  hours  does  not  violate  Const.  U. 
S.  Amend.  14,  as  that  amendment  does  not  impair  the  exer- 
cise of  the  police  power. 

State  v.  Seaboard  Air  Line  R.  Co.,  169  N.  C.  295,  84 
S.  E.  283.  ' 

Care  of  Records. — Requiring  a  carrier  to  keep  a  book 
showing  deliveries  of  intoxicating  liquors,  though  requiring 
ordinary  care  to  preserve  record,  does  not  require  that  rec- 
ord be  kept  in  burglar  or  fireproof  safe. 

Commonwealth  v.  Southern  Exp.  Co.,  182  Ky.  132,  206 
S.  W.  167. 


TITLE  II— SEC.  13  OF  ACT  155 

Liability  of  Carrier  for  Default  of  Agent.— Under  a 
state  statute  requiring  carriers  to  keep  a  book  showing  all 
receipts  and  deliveries  of  liquor,  with  various  particulars, 
open  to  inspection,  and  declaring  "that  any  railroad,  ex- 
press or  other  transportation  company,  or  any  employee 
or  agent  who  fails,"  neglects,  or  refuses  to  comply  with  the 
provision  of  the  section  or  who  makes  or  causes  to  be  made 
any  false  entry  in  such  book,  shall  be  deemed  guilty  of  mis- 
demeanor, an  express  company  which  provided  an  appro- 
priate book  for  the  insertion  of  such  entries,  but  its  local 
agent  delivered  intoxicating  liquors  without  requiring  the 
consignee  to  sign  his  name,  it  was  held,  that,  as  the  purpose 
of  the  statute  is  to  provide  a  check  upon  the  shipment  of 
intoxicating  liquors  into  territory  where  their  sale  as  a  bev- 
erage is  prohibited,  the  express  company  cannot  avoid  lia- 
bility on  the  ground  that  its  duty  was  fulfilled  when  it  pro- 
vided the  book  for  the  required  entries  and  signature  of 
the  consignee,  and  that  the  offense,  if  any,  was  committed 
only  by  its  agent;  the  use  of  the  disjunctive  "or"  in  the 
penal  provision  not  showing  any  intent  to  relieve  transpor- 
tation companies,  and  cast  all  burdens  on  their  agents. 

Commonwealth  v.  Adams  Exp.,  179  Ky.  394,  200  S.  W. 
648. 

Delivery  in  Good  Faith  after  Proper  Investigation. 

— A  carrier  who  in  good  faith,  and  after  proper  investiga- 
tion, delivers  liquor  to  a  consignee  without  any  knowledge 
that  the  same  is  intended  for  illegal  use  in  the  state,  is  not 
guilty. 

Southern  Exp.  Co.  v.  State,  188  Ala.  454,  66  So.  115. 

"When  alcohol  is  shipped  from  a  point  out  of  this  state 
to  a  point  in  the  state  and  delivered  by  a  common  carrier 
to  a  person  in  this  state,  the  duty  devolves  upon  the  car- 
rier to  use  reasonable  care  to  learn  for  what  purpose  it  is 
to  be  used,  and  it  can  only  deliver  the  alcohol  when  in  the 
exercise  of  such  reasonable  care  it  is  convinced  that  the  al- 
cohol is  to  be  used  for  strictly  medicinal  or  mechanical  pur- 
poses. As  stated  in  Adams  Exp.  Co.  v.  Commonwealth, 
160  Ky.  66,  169  S.  W.  603,  if  the  express  company  acts 
upon  reasonable  grounds  in  good  faith  after  such  investi- 
gation as  ordinary  care  requires,  and  is  misled,  it  is  not  lia- 


156  TITLE  II— SEC.  13  OF  ACT 

ble ;  otherwise  it  is  liable.  So  too  in  the  case  of  Southern 
Exp.  Co.  v.  State,  188  Ala.  454,  66  So.  115.  In  discussing 
this  question,  the  Supreme  Court  of  Alabama  said :  'If 
in  good  faith  and  after  proper  investigation  a  common  car- 
rier of  interstate  commerce  delivered  liquors  to  a  consignee 
without  any  knowledge  on  its  part  that  such  liquors  are  in- 
tended by  the  consignee  for  illegal  use,  then  such  carrier 
cannot,  we  think,  be  held  to  have  violated  any  law  of  this 
State.'  In  the  case  of  Clark  Distilling  Co.  v.  Western  Mary- 
land R.  Co.  (D.  C.),  219  Fed.  333,  the  court  held:  'Where 
intoxicating  liquors  are  offered  to  a  carrier  for  transporta- 
tion from  Maryland  into  West  Virginia,  for  the  alleged 
personal  use  of  the  consignee,  the  carrier  is  not  bound  at 
his  peril  to  make  sure  that  the  liquors  are  not  intended  to 
be  used  contrary  to  the  laws  of  such  state,  but  is  only  re- 
quired to  act  in  good  faith  in  a  bona  fide  effort  to  prevent 
its  instrumentalities  being  used  to  aid  a  violation  of  the 
law.  The  court  said :  "In  this  case  nothing  need  be  decided 
other  than  that  the  defendant  as  a  common  carrier  is  bound 
to  receive  for  shipment  and  to  transport  and  deliver  in  West 
Virginia,  such  liquors  as  are  intended  solely  for  the  per- 
sonal use  of  the  consignee  even  though  the  orders  for  them 
had  been  solicited  by  letters  mailed  at  points  outside  the 
state.  It  has  no  right  to  accept  for  shipment,  or  to  deliver 
in  West  Virginia  liquors  which  are  intended  by  any  person 
interested  therein  to  be  used  in  any  way  forbidden  by  the 
law  of  that  state.  It  is  not  bound  at  its  peril  to  make  sure 
that  no  liquor  transported  by  it  is  intended  to  be  used  con- 
trary to  the  state  law.  It  need  not  create  or  maintain  any 
special  staff  of  investigators  or  detectives  to  aid  it  in  deter- 
mining such  questions.  It  must,  however,  act  in  good  faith. 
Its  agent  and  employees  who  handle  such  shipments  for  it 
must  keep  their  eyes  open,  and  must  exercise  common  sense 
to  prevent  it  and  its  instrumentalities  being  used  as  aids  in 
violation  of  the  law.  The  question  of  the  good  faith  of  the 
express  company  in  delivering  the  alcohol  to  Wilson  was  a 
question  of  fact  for  the  jury  in  this  case,  and  the  court 
should  have  instructed  the  jury  as  above  indicated."  : 
Quinn  v.  Reed,  130  Ark.  116,  197  S.  W.  15. 

Under  an  act  prohibiting  the  delivery  in  prohibition  ter- 
ritory of  interstate  shipments  of  intoxicating  liquor,  where 


TITLE  II— SEC.  13  OF  ACT  157 

such  liquor  is  intended  to  be  used  contrary  to  law,  persons 
delivering  intoxicants  within  local  option  territory  are 
bound  to  exercise  proper  care,  which  is  the  use  of  such 
diligence  as  the  circumstances  require  to  see  that  the  liq- 
uor is  not  used  contrary  to  law,  and  only  a  mistake  of  fact 
will  excuse  a  delivery  of  liquors  used  or  intended  to  be  used 
contrary  to  law. 

Ex  parte  Peede,  75  Tex.  Cr.  App.  247,  170  S.  W.  749. 

Conspiracy  to  Effect  Unlawful  Delivery. — A  defend- 
ant, indicted  with  another  for  conspiring  with  employees 
of  a  carrier  to  have  the  employees  deliver  intoxicants  to 
them  under  a  fictitious  name,  may  be  convicted  of  con- 
spiracy, notwithstanding  delivery  to  the  other  alone. 

McKnight  v.  United  States,  164  C.  C.  A.  527,  252  Fed. 
687. 

Connecting  Carrier's  Agency. — "A  common  carrier 
over  whose  lines  a  shipment  of  intoxicating  liquors  has  not 
been  consigned,  but  merely  in  cars  it  has  been  consigned 
over  other  lines  to  a  destination  point,  cannot  act  as  the 
agent  of  the  consignee  in  receipting  for  and  accepting  de- 
livery of  the  shipment." 

Hudgens  v.  Southern  Exp.  Co.,  74  W.  Va.  760,  83  S. 

E.  63. 

See  also,  as  to  transportation  of  liquor  as  a  crime,  ante 
under  Sec.  3. 


TITLE  II— SEC.  14 

Notice   to   Carrier  of  Nature  of  Shipment — Information 
Required  on  Outside  of  Package. 

SEC.  14.  It  shall  be  unlawful  for  a  person  to  use  or 
induce  any  carrier,  or  any  agent  or  employee  thereof,  to 
carry  or  ship  any  package  or  receptacle  containing  liq- 
uor without  notifying  the  carrier  of  the  true  nature  and 
character  of  the  shipment.  No  carrier  shall  transport 
nor  shall  any  person  receive  liquor  from  a  carrier  un- 
less there  appears  on  the  outside  of  the  package  con- 
taining such  liquor  the  following  information: 

Name  and  address  of  the  consignor  or  seller,  name 
and  address  of  the  consignee,  kind  and  quantity  of  liq- 
uor contained  therein,  and  number  of  the  permit  to  pur- 
chase or  ship  the  same,  together  with  the  name  and  ad- 
dress of  the  person  using  the  permit. 

"Consignee"  Construed. — "Consignee."  in  a  statute 
declaring  it  an  offense  to  ship  into  a  state  a  package  of  liq- 
uors unless  labeled  to  show  the  name  of  the  consignee,  not 
being  defined,  must  be  assumed  to  be  used  in  its  ordinary 
commercial  and  legal  significance,  and  so  to  mean  the  one 
to  whom  the  carrier  may  lawfully  make  delivery  in  accord- 
ance with  its  contract  of  carriage. 

Great  Northern  Pac.  S.  S.  Co.  v.  Rainier  Brewing  Co. 
(C.  C.  A.),  255  Fed.  762. 

Any  Evasion  Illegal. — Under  a  law  requiring  interstate 
shipments  of  intoxicating  liquor  to  be  so  labeled  as  to 
plainly  show  the  nature  of  their  contents,  any  attempt  to 
evade  the  law,  by  failing  to  set  forth  the  particulars  truth- 
fully, or  to  disclose  them  plainly,  or  any  attempt  to  cover 
up  with  advertising  matter  the  facts  which  the  law  requires 


TITLE  II— SEC.  14  OF  ACT  159 

the  label  to  reveal,  so  as  to  readily  catch  the  eye,  violates 
the  law. 

United  States  v.  Hillsdale  Distillery  Co.   (D    C  )    242 
Fed.  536. 

Marks  Must  Be  Clear  and  Plain. — "The  act  of  Con- 
gress says  that  the  nature  of  the  contents  of  the  package 
shall  be  plainly  shown  and  shown  on  the  outside  cover.  The 
requirement  is  a  definite  one,  very  easily  complied  with.  It 
means  that  the  marks  must  be  of  manifest,  self-evident  im- 
port, and  must  appear  at  the  place  indicated.  It  clearly 
excludes  the  idea  of  reference  elsewhere  for  information, 
or  of  a  general  knowledge  of  the  trade-names  or  brands 
adopted  by  particular  merchants  for  their  business,  which 
have  not  gained  a  place  in  the  common  vocabulary  of  the 
country.  What  has  been  said  also  precludes  resort  to  bills 
of  lading  issued  by  the  carrier." 

Schmidt  Brewing  Co.  v.  United  States  (C.  C.  A.),  254 
Fed.  695,  696. 

Thus,  where  defendant  made  interstate  shipments  of 
beer,  and  the  only  external  marks  indicating  the  nature  of 
the  packages  were  the  name  of  the  defendant  brewing  com- 
pany, the  trade-name,  "Select/*  and  a  serial  number,  he 
was  guilty  of  violation  of  a  provision  prohibiting  the  in- 
terstate shipment  of  liquors,  unless  the  package  have  its 
contents  plainly  labeled  on  the  outside,  the  fact  that  the  na- 
ture of  the  contents  might  have  been  inferred  or  learned 
from  other  sources  being  immaterial. 

Schmidt  Brewing  Co.  v.  United  States  (C.  C.  A.),  254 
Fed.  695. 

Duty  of  Carrier  to  Inform  Itself  of  Purpose  of  Con- 
signee.— Under  federal  Penal  Code  240  (Acts  March  4, 
1910,  c.  321,  35  Stat.  1137  U.  S.  Comp.  St.  Supp.  1911,  p. 
1662)  prohibiting  interstate  shipments  of  intoxicating  liq- 
uors unless  each  package  containing  the  same  is  so  labeled 
as  to  plainly  show  the  name  of  the  consignee,  the  nature  of 
the  contents,  and  the  quantity,  a  carrier  of  interstate  com- 
merce is  apprised  of  the  character  of  the  shipment  when 
intoxicating  liquor  is  received  by  it,  and  under  the  Webb 
law  (Act  March  1,  1913,  c.  90,  37  Stat.  699),  before  it  de- 


160  TITLE  II— SEC.  14  OF  ACT 

livers  the  liquor  to  the  consignee  in  the  state  it  should  in- 
form itself  of  the  purpose  of  the  consignee,  and  where  it 
has  liquor  in  its  possession  for  delivery  for  a  person  in- 
tending to  use  it  in  violation  of  the  law,  or  actually  deliver- 
ing it  in  the  state  to  such  person,  it  is  presumptively  guilty 
of  a  violation  of  the  law  of  the  state. 

Southern  Exp.  Co.  v.  State,  188  Ala.  454,  66  So.  115. 

Right  of  Carrier  to  Rely  on  Absence  of  Label. — Un- 
less otherwise  advised,  either  of  the  fact  that  an  unlabeled 
package  contains  liquors  within  the  description  of  the  stat- 
ute, or  of  circumstances  reasonably  calculated  to  arouse 
suspicion  or  inquiry  with  respect  to  that  fact,  the  carrier 
to  whom  a  shipment  for  transportation  and  delivery  in  Ala- 
bama is  offered  without  the  state,  may  rely  on  the  absence 
from  a  package  of  the  label  required  by  such  section  as 
negativing  the  presence  therein  of  forbidden  liquors  in  re- 
ceptacles of  prohibited  capacities. 

State  v.  Southern  Exp.  Co.  (Ala.),  75  So.  343. 

And  a  carrier  will  not  be  held  to  receive  at  peril  of  of- 
fending the  prohibitory  and  regulatory  laws  of  Alabama 
consignments  of  intoxicating  liquor  destined  for  transpor- 
tation into  and  for  delivery  in  Alabama,  where  they  were 
free  from  cause  of  suspicion  that  they  contained  prohibited 
liquors  in  receptacles  of  forbidden  capacities. 

State  v.  Southern  Exp.  Co.  (Ala.),  75  So.  343. 

Failure  to  Inspect — Statute  Forbidding  Opening.— 

An  Act  prohibiting  the  delivering  carrier  from  opening  on 
the  premises  in  Alabama  an  original  package,  does  not  ex- 
cuse an  interstate  carrier's  failure  to  inspect  liquors  ten- 
dered for  shipment  from  without  the  state  to  a  point  with- 
in the  state;  the  operation  of  such  section  being  restricted 
to  its  purpose  to  prevent  the  apportionment  of  or  distribu- 
tion of  the  contents  of  a  shipment  of  liquor  at  destination 
on  the  premises  of  the  carrier. 

State  v.  Southern  Exp.  Co.  (Ala.),  75  So.  343. 
See  also  ante,  under  Sec.  3,  Title  II. 


TITLE  II— SEC.  15 

False    Statements   of   Liquor   Shipments— Receipt,   Ship- 
ment or  Delivery  Unlawful. 

SEC.  15.  It  shall  be  unlawful  for  any  consignee  to  ac- 
cept or  receive  any  package  containing  any  liquor  upon 
which  appears  a  statement  known  to  him  to  be  false,  or 
for  any  carrier  or  other  person  to  consign,  ship,  trans- 
port, or  deliver  any  such  package,  knowing  such  state- 
ment to  be  false. 

Application  to  Carrier.— The  Ky.  St.  2569b,  subd.  1, 
prohibiting  in  dry  territory  delivery  of  intoxicating  liquor 
to  any  person  intending  to  sell  it  and  subsection  2,  prohibit- 
ing consignment,  transportation,  or  shipment  of  such  liquor 
or  any  package  of  intoxicating  liquors  upon  which  appears  a 
false  statement,  was  held  applicable  to  carrier  as  well  as  to 
consignor  or  consignee. 

American  Exp.  Co.  v.  Commonwealth,  171  Ky.  1,  186 
S.  W.  887. 

But  the  carrier  is  liable  only  if  its  agent  knew  the  package 
to  be  falsely  marked  or  the  purpose  for  which  such  liquor 
was  to  be  used,  and  is  not  required  to  use  reasonable  care 
to  ascertain  the  purpose  for  which  such  liquors  are  to  be 
used. 

American  Exp.  Co.  v.  Commonwealth,  171  Ky.  1,  186 

S.  W.  887. 
See  also  ante,  under  Sec.  3,  Title  II. 

—11 


TITLE  II— SEC.  17 

Advertisements  Unlawful — Signs  and  Bill  Boards — Ex- 
ceptions— Price  Lists,  etc. — Advertisements  of  Alco- 
hol— Newspapers  Published  Abroad. 

SEC.  17.  It  shall  be  unlawful  to  advertise  anywhere, 
or  by  any  means  or  method,  liquor,  or  the  manufacture, 
sale,  keeping  for  sale  or  furnishing  of  the  same,  or 
where,  how,  from  whom,  or  at  what  price  the  same  may 
be  obtained.  No  one  shall  permit  any  sign  or  billboard 
containing  such  advertisement  to  remain  upon  one's 
premises.  But  nothing  herein  shall  prohibit  manufac- 
turers and  wholesale  druggists  holding  permits  to  sell 
liquor  from  furnishing  price  lists,  with  description  of 
liquor  for  sale,  to  persons  permitted  to  purchase  liquor, 
or  from  advertising  alcohol  in  business  publications  or 
trade  journals  circulating  generally  among  manufac- 
turers of  lawful  alcoholic  perfumes,  toilet  preparations, 
flavoring  extracts,  medicinal  preparations,  and  like  ar- 
ticles: Provided,  however,  That  nothing  in  this  Act  or 
in  the  Act  making  appropriations  for  the  Post  Office  De- 
partment, approved  March  3,  1917  (Thirty-ninth  Stat- 
utes at  Large,  Part  1,  page  1058,  et  seq.),  shall  apply  to 
newspapers  published  in  foreign  countries  when  mailed 
to  this  country. 

Authority  of  State  to  Prohibit. — As  the  state  has  au- 
thority under  its  police  power  to  regulate  the  sale  of  intox- 
icants, and  as  contracts  relating  to  such  sales  are  subject 
to  such  power,  a  statute  prohibiting  newspapers  and  maga- 
zines in  the  state  from  advertising  for  the  sale  of  intoxi- 
cants, does  not  work  an  impairment  of  contracts,  even 
though  publishers  already  had  contracts  for  the  publication 
of  liquor  advertisement,  such  contracts  being  also  subject 
to  the  police  power. 

Advertiser  Co.  v.  State,  193  Ala.  418,  69  So.  501. 


TITLE  II— SEC.  17  OF  ACT  163 

The  power  to  prohibit  or  regulate  the  sale  of  intoxicat- 
ing liquors  includes  also  the  power  to  prohibit  solicitations 
for  such  sales  by  agent  or  advertisement. 

Black  v.  Delaye,  193  Ala.  500,  68  So.  993. 
See  State  v.  Ross   (N.  D.),  170  N.  W.  121. 

Circulation  by  Mail. — "A  liquor  dealer  residing  and 
doing  business  in  another  state,  who,  by  the  agency  of  the 
United  States  mails  sends  into  one  state  unsolicited  and 
there  circulates  or  distributes  to  prospective  customers 
price  lists,  circulars  and  order  blanks  advertising  his  liq- 
uors for  sale  and  which  he  proposes  to  ship  into  this  state 
to  them,  and  which  advertising  matter  by  such  agency  is 
actually  delivered  to  a  citizen  of  this  state,  is  guilty  of  a 
violation  of  section  8,  chapter  13  Acts  of  the  legislature  of 
1913  known  as  the  Yost  Law  (Code  1913,  c.  32A.  8.  §  287) 
and  so  construed,  said  act,  by  virtue  of  the  acts  of  con- 
gress known  as  the  Wilson  act  (Act  Aug.  8,  1890,  c.  728 
Stat.  313,  U.  S.  Comp.  St.  1913,  8738)  and  the  Webb- 
Kenyon  Act  (Act  March  1,  1913,  c.  90,  37  Stat.  699,  U. 
S.  Comp.  St.  8739)  does  not  infringe  the  commerce  clause 
of  section  8  of  article  1  of  the  Federal  constitution.  Nor 
does  the  provision  of  section  8  of  said  act  1913,  so  con- 
strued and  applied,  violate  the  'privileges  and  immunities' 
clause  of  the  Fourteenth  Amendment  to  the  Federal  consti- 
tution." 

State  v.  Davis,  77  W.  Va.  271,  87  S.  E.  262,  L.  R.  A. 
1917C,  639. 

Newspapers  Published  without  State. — The  law  pro- 
hibiting the  sale  of  newspapers  and  magazines  containing 
liquor  advertisements,  does  not,  when  applied  to  a  news- 
paper published  out  of  the  state,  and  containing  an  adver- 
tisement of  liquor  manufactured  out  of  the  state  and  to  be 
shipped  into  the  state  to  individuals  ordering  it,  violate 
Const.  U.  S.  art.  1,  8,  vesting  in  Congress  the  exclusive 
power  to  regulate  interstate  commerce. 

Black  v.  Delaye,  193  Ala.  500,  68  So.  993. 
See  also,  State  v.  Davis,  77  W.  Va.  271,  87  S.  W.  262, 
L.  R.  A.  191 7C,  639,  set  out  supra. 


164  TITLE;  II— SEC.  17  OF  ACT 

Scope  of  Prohibition. — The  Georgia  statute  (Rev.  St. 
1903,  c.  29,  45),  forbidding  the  publication  of  advertise- 
ments of  the  sale  or  keeping  for  sale  of  intoxicating  liq- 
uors, includes  advertisements  of  intoxicating  liquors  sold 
or  kept  for  sale  without  the  state. 

State  v.  Bass  Pub.  Co.,  104  Me.  288,  71  Atl.  894,  20 
L.  R.  A.,  N.  S.,  495. 

Advertisement  Must  Give  Information  Where  to  Be 
Obtained. — It  is  not  a  violation  of  a  statute  prohibiting 
the  advertisement  of  intoxicating  liquors,  or  of  any  per- 
son from  whom,  or  the  price  at  which,  or  the  method  by 
which,  intoxicating  liquors  may  be  obtained,  for  a  news- 
paper to  publish  an  advertisement  signed  by  the  United 
States  Brewers'  Association,  setting  forth  that  the  Federal 
government  had  recognized  the  distinction  between  beer  and 
spirituous  liquors,  and  attempting  to  popularize  beers  and 
light  wines  as  temperance  beverages  at  the  expense  of  dis- 
tilled liquors,  the  advertisement  not  giving  any  information 
as  to  where  beer  or  light  wines  could  be  obtained. 

State  v.  Advertiser  Co.  (Ala.),  77  So.  758. 

Giving  Away  Samples  in  Connection  with  Circulars, 
etc. — Where  an  agent  of  a  nonresident  dealer  in  intoxi- 
cating liquors  distributes  circulars  and  price  lists  of  such 
liquors,  and  in  connection  therewith,  personally  gives  away 
samples  of  such  intoxicating  liquors  in  this  state,  he  is 
guilty  of  soliciting. 

Kirkpatrick  v.  State,  12  Ga.  App.  252,  77  S.  E.  104. 


TITLE  II— SEC.  19 

Soliciting  or  Receiving  Orders — Giving  Information  as  to 
Obtaining  Liquor. 

SEC.  19.  No  person  shall  solicit  or  receive,  nor  know- 
ingly permit  his  employee  to  solicit  or  receive,  from  any 
person  any  order  for  liquor  or  give  any  information  of 
how  liquor  may  be  obtained  in  violation  of  this  Act. 

Constitutionality. — A  law  which  prohibits  the  solicit- 
ing or  taking  of  orders  for  the  sale  of  intoxicating  liquors 
in  counties  where  such  sales  are,  by  law,  prohibited,  is  a 
police  regulation,  necessary  for  the  effective  enforcement 
of  the  State's  prohibitory  regulations.  The  act  forbidding 
soliciting  orders  for  intoxicating  liquor,  is  not  affected  by 
the  extension  of  the  scope  of  its  operations  caused  by  the 
passage  of  the  general  prohibition  act. 

Rose  v.  State,  4  Ga.  App.  588,  62  S.  E.  117. 

Receiving  "or"  Soliciting. — Where  a  statute  makes 
the  receiving  of  orders  for  spirituous  liquors,  as  well  as 
the  soliciting  of  them,  an  offense,  and  the  two  terms  are 
connected  by  the  disjunctive  "or"  not  the  conjunctive 
"and,"  it  is  not  necessary  that  there  be  a  soliciting,  but  the 
receiving  of  them  alone  is  a  violation  of  the  statute. 
State  v.  Decker,  75  W.  Va.  565,  84  S.  E.  376. 

Taking  Order  for  Liquor— Place  of  Sale. — Taking 
an  order  for  liquor  to  be  furnished  from  a  wholesale  house 
located  elsewhere  for  subsequent  shipment  to  the  party  giv- 
ing the  order  does  not  amount  to  a  sale  in  the  county,  where 
the  order  was  taken. 

People  v.  Meloche,  186  Mich.  536,  152  N.  W.  918. 

Solicitation  by  Letter. — Where  the  solicitation  or  tak- 
ing orders  for  the  sale  of  intoxicating  liquor  is  forbidden, 
whether  the  solicitation  is  by  the  seller  personally,  or 
whether  the  solicitor  is  only  an  agent  of  the  seller,  to  solicit 


166  TITLE  II— SEC.  19  OF  ACT 

the  sale  of  intoxicating  liquor  by  letter  or  circular  is  a 
crime,  if  the  letter  is  intended  to  be  delivered  and  is  in  fact 
delivered  as  intended.  The  term  solicit  personally  includes 
any  act  done  by  the  seller  himself  which  may  tend  to  effect 
a  sale,  as  contrasted  with  any  like  act  by  an  agent  of  the 
seller,  tending  to  a  similar  result.  Whether  a  solicitation 
is  personal  or  by  an  agent,  is  not  dependent  upon  the  per- 
sonal presence  of  the  solicitor,  but  upon  whether  the  means 
of  solicitation,  whether  oral  or  in  writing,  are  used  by  an 
agent  or  by  the  principal  himself.  The  solicitation  of  or- 
ders by  mail  for  the  sale  of  intoxicating  liquors  is  personal 
solicitation  if  the  seller  himself  in  person  writes  or  mails 
the  letter  received  by  the  prospective  buyer. 
Rose  v.  State,  4  Ga.  App.  588,  62  S.  E.  117. 

Delivery  Unnecessary. — Defendant,  as  agent  of  a  firm 
of  liquor  dealers,  solicited  a  person  to  purchase  one  gallon 
of  liquor,  for  which  he  received  payment  in  full,  giving  an 
order  on  the  firm  of  liquor  dealers,  setting  forth  the  goods 
sold,  price  paid,  the  mode  of  shipment  and  directing  the 
dealers  to  express  the  same  at  once.  Defendant  admitted 
that  his  orders  to  the  firm  of  liquor  dealers  were  always 
filled.  Held,  to  constitute  a  sale  of  liquor,  without  evidence 
of  a  delivery  of  the  same. 

State  v.  Small,  82  S.  C.  93,  63  S.  E.  4. 


TITLE  II— SEC.  21 
Liquor  Nuisance  as  Crime. 

SEC.  21.  Any  room,  house,  building,  boat,  vehicle, 
structure,  or  place  where  intoxicating  liquor  is  manu- 
factured, sold,  kept,  or  bartered  in  violation  of  this  ti- 
tle, and  all  intoxicating  liquor  and  property  kept  and 
used  in  maintaining  the  same,  is  hereby  declared  to  be 
a  common  nuisance,  and  any  person  who  maintains  such 
a  common  nuisance  shall  be  guilty  of  a  misdemeanor  and 
upon  conviction  thereof  shall  be  fined  not  more  than 
$1,000  or  be  imprisoned  for  not  more  than  one  year,  or 
both.  If  a  person  has  knowledge  or  reason  to  believe 
that  his  room,  house,  building,  boat,  vehicle,  structure, 
or  place  is  occupied  or  used  for  the  manufacture  or  sale 
of  liquor  contrary  to  the  provision  of  this  title,  and 
suffers  the  same  to  be  so  occupied  or  used,  such  room, 
house,  building,  boat,  vehicle,  structure,  or  place  shall 
be  subject  to  a  lien  for  and  may  be  sold  to  pay  all  fines 
and  costs  assessed  against  the  person  guilty  of  such 
nuisance  for  such  violation,  and  any  such  lien  may  be 
enforced  by  action  in  any  court  having  jurisdiction. 

Whoever  establishes,  continues,  or  uses  any  building  for 
the  purpose  of   selling  therein   intoxicating  liquor,  or  for 
the  purpose  of  keeping  intoxicating  liquor  therein  with  in- 
tent to  sell  the  same,  is  guilty  of  keeping  a  liquor  nuisance. 
State  v.  Jarvis  (la.),  165  N.  W.  61. 

As  Continuing  Offense.— The  crime  of  maintaining  a 
liquor  nuisance  is  a  "continuing  offense." 

State  v.  Maguire,  31  Idaho  24,  169  Pac.  175. 

Single    Sale. — A   single  sale   will  warrant  a  conviction 
under  an  information  for  keeping  and  maintaining  a  com- 


168  TITLE  II— SEC.  21  OF  ACT 

mon  nuisance  by  keeping  a  place  where  intoxicating  liquors 
are  sold  as  a  beverage. 

Scott  v.  State,  37  N.  D.  90,  163  N.  W.  813. 

Time  Not  a  Material  Ingredient. — Time  is  not  a  ma- 
terial ingredient  of  the  crime  of  keeping  and  maintaining 
a  common  nuisance  contrary  to  the  provisions  of  the  pro- 
hibition law. 

State  v.  Webb,  36  N.  D.  235,  162  N.  W.  358. 

Knowledge  of  Accused — Intent. — Proof  of  sale  of 
liquor  on  defendant's  premises,  without  proof  that  it  was 
done  with  the  knowledge,  consent,  acquiescence,  or  conni- 
vance of  defendant,  does  not  establish  that  he  kept  the  liq- 
uor sold  /with  intent  to  sell  it  in  violation  of  law. 
State  v.  Jarvis  (la.),  165  N.  W.  61. 

Maintenance  for  One  Day  Sufficient.— "It  was  not 
incumbent  upon  the  state  to  show  that  the  place  was  used 
for  such  unlawful  purposes  during  the  entire  period  named 
in  the  indictment.  Proof  that  the  defendant  kept  and  main- 
tained a  tenement  for  any  one  of  such  purposes  during  any 
part  of  the  time  comprised  within  the  days  named  in  the 
indictment  would  warrant  a  conviction.  It  is  the  nature  of 
the  acts  done,  not  the  length  of  time  during  which  they  are 
committed,  that  constitutes  the  offense.  The  case  is  made 
out,  the  offense  is  committed,  if  for  a  single  day  between 
those  dates  that  place  was  so  used.  If  for  a  single  hour  in 
the  day  it  was  so  used,  for  that  hour  it  was  a  common  nui- 
sance, and  whoever  for  that  hour  maintained  the  place  was 
guilty  of  keeping  and  maintaining  a  common  nuisance." 
State  v.  Kapicsky,  105  Me.  127,  73  Atl.  830,  23  L.  R. 
A.,  N.  S.,  737. 

Legal  Title  Unnecessary — Possession  and  Control. 

— "Upon  an  indictment  charging  maintenance  of  a  public 
nuisance  by  knowingly  permitting  unlawful  sales  of  intox- 
icating liquors  in  a  building  therein  described  as  'owned 
and  occupied'  by  defendant,  proof  of  legal  title  by  her  is 
not  essential.  Possession  and  control  of  the  premises  are 
all  the  statute  requires." 

State  v.  Rogers,  80  W.  Va.  680,  93  S.  E.  757. 


TITLE  II— SEC.  21  OF  ACT  169 

Intoxicating  Character  of  Liquor. — In  a  prosecution 
for  maintenance  of  a  liquor  nuisance  the  state  must  show, 
either  directly  or  by  fair  inference,  that  the  liquors  con- 
tained some  alcohol,  and  therefore  were  intoxicating,  when 
taken  from  the  accused. 

State  v.  Knapp,  177  la.  278,  158  N.  W.  517. 

Procurement  by  State  Agent  as  Defense.— Under  a 

state  law  making  it  the  duty  of  state  agents  to  aid  in  the 
capture  and  prosecution  of  persons  committing  crime  or 
violating  the  laws  of  the  state,  the  fact  that  such  an  agent, 
without  improper  solicitation,  and  while  endeavoring  to  as- 
certain whether  defendant  was  violating  the  law,  asked  for 
a  pint  of  whisky  and  received  and  paid  for  it,  was  no  de- 
fense to  prosecution  for  maintaining  a  liquor  nuisance. 

State  v.  See,  177  la.  316,  158  N.  W.  667. 

Immaterial  Whether  Lessee  or  Agent. — And  it  was 

not  material  whether  one  prosecuted  for  maintaining  a  liq- 
uor nuisance,  and  who  sold  intoxicating  liquors  to  persons 
acting  as  state  agents,  was  renting  the  place  or  was  acting 
as  clerk  or  employee  for  his  mother. 

State  v.  See,  177  la.  316,  158  N.  W.  667. 

Jurors — Challenge  for  Prejudice. — In  a  nuisance 
prosecution  for  selling  intoxicating  liquor  the  state  cannot 
question  prospective  jurors  regarding  their  prejudice 
against  the  testimony  of  witnesses  obtaining  information 
solely  for  purposes  of  prosecution. 

State  v.  Hoffman  (Ore.),  166  Pac.  765. 

Abatement— Appeal  of  Search  and  Seizure  Pro- 
ceedings.— A  prosecution  for  maintenance  of  a  liquor  nui- 
sance does  not  abate  by  the  pendency  on  appeal  of  search 
and  seizure  proceedings  against  the  same  parties. 

State  v.  Knapp,  177  la.  278,  158  N.  W.  517. 

Evidence  and  Question  for  Jury. 

See  post,  "Evidence,"  under  Section  33. 


170  TITLE  II— SEC.  21  OF  ACT 

Abatement  of  Nuisance. — An  automobile  or  other  ve- 
hicle used  in  the  unlawful  transportation  of  intoxicating 
liquor  which  is,  by  statute  declared  to  be  a  common  nui- 
sance, may  be  abated  as  in  the  act  provided. 

State   v.   Jones-Hansen-Cadillac   Co.    (Neb.),    172   N. 

W.  36. 
See  also  post,  under  Sec.  23. 


TITLE  II— SEC.  23 

INJUNCTION. 
Nature  of  Proceeding — Jurisdiction  and  Scope. 

Nuisance  to  Traffic  in  Liquor — Keeping,  Carrying  About 
or  Dealing  in — Injunction— Showing  as  to  Intention 
to  Continue — Fees  of  Officer— Forfeiture  of  Lease. 

SEC.  23.  That  any  person  who  shall,  with  intent  to 
effect  a  sale  of  liquor,  by  himself,  his  employee,  servant, 
or  agent,  for  himself  or  any  person,  company,  or  corpo- 
ration, keep  or  carry  around  on  his  person,  or  in  a  ve- 
hicle, or  other  conveyance  whatever,  or  leave  in  a  place 
for  another  to  secure,  any  liquor,  or  who  shall  travel  to 
solicit,  or  solicit,  or  take,  or  accept  orders  for  the  sale, 
shipment,  or  delivery  of  liquor  in  violation  of  this  title 
is  guilty  of  a  nuisance  and  may  be  restrained  by  injunc- 
tion, temporary  and  permanent,  from  doing  or  continu- 
ing to  do  any  of  said  acts  or  things. 

In  such  proceedings  it  shall  not  be  necessary  to  show 
any  intention  on  the  part  of  the  accused  to  continue 
such  violations  if  the  action  is  brought  within  sixty 
days  following  any  such  violation  of  the  law. 

For  removing  and  selling  property  in  enforcing  this 
Act  the  officer  shall  be  entitled  to  charge  and  receive  the 
same  fee  as  the  sheriff  of  the  county  would  receive  for 
levying  upon  and  selling  property  under  execution,  and 
for  closing  the  premises  and  keeping  them  closed  a  rea- 
sonable sum  shall  be  allowed  by  the  court. 

Any  violation  of  this  title  upon  any  leased  premises 
by  the  lessee  or  occupant  thereof  shall,  at  the  option  of 
the  lessor,  work  a  forfeiture  of  the  lease. 


172  TIIXE  II— SEC.  23  OF  ACT 

Nature  of  Proceeding. — An  action  to  enjoin  the  main- 
tenance of  a  liquor  nuisance  is  not  criminal,  but  civil,  and 
a  preponderance  of  evidence  is  sufficient  to  warrant  an  in- 
junction. 

State  v.  Cipra,  92  Kan.  591,  141  Pac.  1133. 

A  law  which  imposes  a  penalty  upon  persons  unlawfully 
selling  or  giving  away  intoxicating  liquors,  and  gives  the 
chancery  court  jurisdiction  concurrent  with  courts  of  law 
to  entertain  suits  for  penalties  and  to  suppress  the  business 
as  a  nuisance,  and  to  further  punish  the  persons  engaged 
therein,  is  not  a  criminal  statute,  and  does  not  authorize 
criminal  prosecutions. 

State  v.  Marshall,  100  Miss.  626,  56  So.  729,  Ann.  Cas. 
1914A,  434. 

No  Criminal  Conviction  Necessary. — The  remedy  by 
action  in  equity  to  enjoin  a  public  nuisance  may  be  invoked 
against  a  place  for  the  sale  of  intoxicating  liquors,  though 
there  has  been  no  criminal  conviction  of  the  keeper  of  the 
place. 

State  v.  Reisen,  165  Wis.  258,  161  N.  W.  747,  748. 

Equitable  Jurisdiction. — The  equitable  jurisdiction  of 
the  court  to  enjoin  a  public  nuisance  is  not  affected  by  the 
fact  that  a  criminal  prosecution  may  also  be  instituted  for 
the  acts  which  constitute  the  nuisance. 

State  v.  Lyon,  83  S.  C.  509,  65  S.  E.  730. 

Power  of  Chancery  Court. — A  constitutional  provision 
which  declares  that  the  chancery  court  shall  have  full 
jurisdiction  in  all  matters  of  equity,  means  that  in  whatever 
is  a  matter  of  equity,  the  court's  power  to  adjudge  is  full, 
and  that,  when  the  court  takes  hold  of  a  subject,  it  ought  to 
dispose  of  it  fully  and  finally,  the  word  "full"  implying  that 
nothing  is  reserved,  and,  as  thus  construed,  the  provision  is 
broadly  declaratory  of  the  rule  that,  where  equity  has 
jurisdiction  for  one  purpose,  it  acquires  jurisdiction  for  all 
purposes,  and  a  court  of  chancery,  having  statutory  juris- 
diction under  a  statute  to  abate  a  liquor  nuisance,  may  not 


TITLE  II— SEC.  23  OF  ACT  173 

only  abate  nuisance,  but  may  also  render  judgment  for  the 
statutory  penalties. 

State  v.  Marshall,  100  Miss.  626,  56  So.  792,  Ann.  Cas. 
1914A,  434. 

But  under  the  authority  to  abate  nuisance  conferred  by 
a  state  law,  the  injunction  goes  primarily  against  places  in 
which  the  prohibition  laws  are  habitually  violated  and  inci- 
dentally against  persons  who  maintain  such  places.  Such 
authority  does  not  extend  to  violations  of  the  prohibition 
laws  generally  or  in  ways  other  than  those  designated  in 
said  sections.  Neither  said  section  nor  any  other  laws  con- 
fers upon  courts  of  equity  general  power  to  govern  the 
state  by  injunction,  in  so  far  as  its  laws  pertain  to  the  sub- 
ject of  intoxicating  liquors. 

State  v.  Baltimore,  etc.,  R.  Co.,  78  W.  Va.  526,  89  S.. 
E.  288,  L.  R.  A.  1916F,  1001. 

Blanket  Injunction. — A  person  maintaining  a  nuisance 
by  selling  liquor  at  a  certain  place  cannot  be  enjoined  from 
selling  liquor  independently  of  the  place  where  nuisance  ex- 
ists; and  hence  a  blanket  injunction  against  defendants,  re- 
straining them  from  selling  alcoholic  liquors  within  the 
state  was  properly  refused. 

State  v.  Lyon,  83  S.  C.  509,  65  S.  E.  730. 

Statutory  Authority  Essential. — "In  the  absence  of  a 
statute  conferring  it,  equity  has  no  jurisdiction  to  abate  a 
public  nuisance,  either  civil  or  criminal,  at  the  instance  of 
an  individual  or  the  state,  not  affecting  or  injuring  the  en- 
joyment of  property  or  other  personal  rights.  Injunction 
is  not  a  remedy  for  the  enforcement  of  criminal  laws  gen- 
erally." 

State  v.  Baltimore,  etc.,  R.  Co.,  78  W.  Va.  526,  89  S. 

E.  288,  L.  R.  A.  1916F,  1001. 
Alton  v.  Salley  (Mo.),  215  S.  W.  241. 

The  general  rule  is  that,  in  absence  of  specific  statute, 
injunction  will  not  lie  to  abate  a  nuisance  where  the  acts 
complained  of  are  an  offense  against  the  criminal  laws,  but 
where  a  place  or  particular  business  is  declared  to  be  a  pub- 
lic nuisance,  as  is  a  liquor  nuisance,  by  statute,  such  a  nui- 


174  TITLE  II— SEC.  23  OF  ACT 

sance,  notwithstanding  it  violates  the  criminal  laws,  may  be 
abated  by  injunction  pursuant  to  the  statute  authorizing 
a  civil  action  to  abate  a  public  nuisance. 

State  v.  Bossingham,  35  S.  D.  355,  152  N.  \V.  285. 

Thus,  unless  made  so  by  statute,  the  crime  of  aiding  in 
the  delivery  and  distribution  of  intoxicating  liquors  is  not 
a  nuisance,  for  such  acts  were  not  a  nuisance  at  common 
law. 

Hathaway  v.  Benton,  172  la.  299,  154  N.  W.  474. 

And  a  court  of  chancery,  at  the  instance  of  the  common- 
wealth, will  not  enjoin  the  use  of  a  building  for  the  mere 
sale  of  intoxicating  liquors  on  Sunday,  in  the  absence  of 
the  statute  authorizing  the  action,  although  the  sale  of  liq- 
uor on  Sunday  is  prohibited  by  law. 

Commonwealth  v.  Ruh,  173  Ky.  771,  191  S.  W.  498, 
L.  R.  A.  1917D,  283. 

And  the  shipment  of  liquor  into  a  local  option  county 
by  a  common  carrier  cannot  be  enjoined  by  a  court  of  eq- 
uity, regardless  of  the  criminality  of  the  act,  where  such 
shipment  did  not  result  in  the  maintenance  of  a  public  nui- 
sance, it  not  appearing  that  such  shipment  resulted  in  drunk- 
enness, the  remedy  being  to  proceed  under  the  criminal  stat- 
utes, for  a  court  of  equity  has  no  jurisdiction  to  enjoin  an 
act  merely  because  it  is  criminal. 

State  v.  Chicago,  etc.,  R.  Co.  (Mo.  App.),  191  S.  W. 
1051. 

Sale  of  Liquor  Alone. — The  illegal  sale  of  intoxicating 
liquor  cannot  be  enjoined  when  unaccompanied  by  circum- 
stances making  a  nuisance. 

State  v.  Kirkwood  Leisure  Hours'  Social,  etc.,   Club 

(Mo.  App.),  187  S.  W.  819. 
See  also,  Alton  v.  Salley  (Mo.),  215  S.  W.  241. 

Law  in  Force  When  Suit  Brought  Governs. — The  li- 
ability of  one,  alleged  to  maintain  a  liquor  nuisance,  to  in- 
junction, must  be  governed  under  the  law  as  it  stood  when 


TITLE  II— SEC.  23  OF  ACT  175 

the  suit  was  brought,  unaffected  by  a  statute  which  became 
effective  three  months  thereafter. 

Civic  Improv.  League  v.  Hanson,  181  la.  327    164  N 
W.  752. 

Case  Must  Come  within  Statute.— Under  a  state  stat- 
ute authorizing  an  injunction  against  persons  who  may  sell 
or  give  away  any  vinous  or  spirituous  liquors  unlawfully, 
defendants,  who  sold  beer,  cannot  be  enjoined,  though  the 
beer  contained  alcohol;  for  beer  is  a  malt  liquor,  and  is 
neither  a  vinous  nor  a  spirituous  liquor. 

Collotta  v.  State,  110  Miss.  448,  70  So.  460. 

And  a  manufacturing  plant  where  only  nonintoxicating 
malt  liquor  is  made  and  sold,  is  not  a  nuisance  which  may 
be  abated  under  the  "blind  tiger"  statute  which  declares 
that  "any  place  spirituous,  malt,  or  intoxicating  liquors  are 
sold  in  violation  of  law,  shall  be  deemed  a  nuisance,  and  the 
same  may  be  abated  or  enjoined  as  such,"  etc. 

Howard  v.  Acme  Brewing  Co.,  143  Ga.  1,  83  S.  E. 
1096. 

Delivery  Alone. — And  where  the  statute  made  offenses 
relating  to  intoxicating  liquor  a  nuisance  only  when  car- 
ried on  in  or  in  connection  with  building  or  places,  the 
crime  of  aiding  in  delivering  intoxicants  is  not  a  nuisance. 
Nor  is  such  crime  made  a  nuisance  by  virtue  of  a  statute 
declaring  that,  if  any  common  carrier  or  person  shall  trans- 
port or  convey  intoxicating  liquors  without  first  having 
been  furnished  with  a  certificate  by  the  clerk  of  the  court, 
he  shall  upon  conviction  be  fined. 

Hathaway  v.  Benton,  127  la.  299,  193  N.  W.  474. 

What  Constitutes  a  Nuisance. 

The  generally  accepted  doctrine  is  that  the  keeping  of  a 
place  where  intoxicating  liquors  are  sold  contrary  to  law 
does  not  constitute  such  place  a  nuisance  per  se  that  courts 
of  equity  will  abate  by  injunction. 

Territory  v.  Robertson,  19  Okla.  149,  92  Pac.  144. 
Joyce  on  Nuisance,  415. 

Commonwealth  v.  Ruh,  173  Ky.  771,  191  S.  W.  498, 
L.  R.  A.  1917D,  283. 


176  TITLE  II— SEC.  23  OF  ACT 

And  under  a  statute  providing  that  all  places  used  for 
the  illegal  sale  or  keeping  of  intoxicants  are  common  nui- 
sances,  the   premises   involved   must   have   been  habitually 
and  customarily  used  for  the  purposes  mentioned. 
State  v.  Gastonguay   (Me.),  105  Atl.  402. 

And  the  mere  assembling  of  idle  and  turbulent  citizens 
at  a  given  place  where  liquor  is  sold  does  not  constitute  a 
public  or  private  nuisance  unless  it  appears  that  they  have 
been  guilty  of  some  misbehavior  which  is  sufficient  under 
the  law  to  produce  such  result. 

State  v.  Dick  &  Bros. -Quincy  Brewing  Co.,  270  Mo. 
100,  192  S.  W.  1022,  L.  R.  A.  1917D,  1023n. 

But  it  has  been  held  that  one  who  sells  liquor  in  violation 
of  law  and  has  the  reputation  of  so  doing  maintains  a  liq- 
uor nuisance. 

State  v.  Kiefer,  172  la.  306,  151  N.  W.  440. 

"The  sale  of  liquor  in  violation  of  law  is  a  crime,  but 
equity  will  not  enjoin  the  sale.  This  will  be  left  to  the 
courts  of  law.  But  unlawful  sales  of  liquor  may  be  made 
at  such  places  and  under  such  facts  and  circumstances  as 
to  make  the  whole  thing  a  public  nuisance.  It  is  then,  and 
only  then,  that  equity  will  intervene  and  abate  the  nuisance. 
But  the  evidence  must  show  such  surrounding  circumstances 
and  facts  as  will  constitute  the  maintenance  of  the  place  of 
sale  a  public  nuisance.  Merely  showing  that  there  are  vio- 
lations of  law  in  the  sales  by  selling  less  than  the  license 
to  sell  authorized  does  not  make  a  public  nuisance." 
State  v.  Jones  (Mo.),  209  S.  W.  876,  877. 

Clubhouse. — One  is  engaged  in  the  illegal  traffic  in  in- 
toxicating liquors,  in  violation  of  the  law  and  an  injunction 
will  lie,  where  the  building  in  which  liquor  is  kept  is  not  a 
dwelling  house,  but  a  public  place,  and  is  used  by  him  and 
others  as  a  clubhouse,  or  for  distribution  of  the  liquor,  or 
if  the  liquor  is  received  or  kept  in  his  place  of  business, 
though  it  is  for  their  personal  use. 

Dutton  v.  Anderson  (la.),  145  N.  W.  321. 

Places  Where  Persons  Are  "Permitted"  to  Resort, 
etc. — The  word  "permit"  construed  in  connection  with  a 


TITLE  II— SEC.  23  OF  ACT  177 

statute,  providing  that  "all  places  where  *  *  *  persons 
are  permitted  to  resort  for  the  purpose  of  drinking  intoxi- 
cating liquors  as  a  beverage  *  *  *  are  hereby  declared 
to  be  common  nuisance,"  means  the  same  as  "consent,"  and 
consent  implies  knowledge. 

State  v.  Wheeler,  38  N.  D.  456,  165  N.  W.  574,  575. 

Place  Where  "Intoxicating"  Liquors  Are  Manufac- 
tured, Stored,  Sold,  etc.— The  term  "intoxicating  liq- 
uors," as  used  in  Nevada  Prohibition  Law,  §  14,  making 
place  where  such  liquors  are  manufactured,  stored,  sold, 
etc.,  public  nuisances,  is,  when  said  section  is  considered 
together  with  sections  6  and  17,  to  be  taken  as  used  inter- 
changeably with  the  word  "liquors"  in  section  1,  and  dis- 
trict court  had  jurisdiction  to  enjoin  defendant  brewing 
company  from  manufacturing  and  selling  "Sierra  Bever- 
age," although  said  beverage  is  not  intoxicating. 

State  v.  Reno  Brewing  Co.   (Nev.),  178  Pac.  902. 

Vehicle  as  "Place." — A  vehicle  moving  about  from 
one  place  in  the  city  to  another  while  engaged  in  selling  in- 
toxicating liquors  in  violation  of  law  and  of  the  ordinance 
of  the  city,  is  a  place  within  the  meaning  of  a  statute  and 
city  ordinance  which  prohibit  nuisances  as  defined  in  that 
statute. 

Kansas  City  Breweries  Co.  v.  Kansas  City,     96  Kan. 
731,  153  Pac.  523. 

"Bootlegging." — A  statute  declaring  that  any  person 
who  shall  keep  or  carry  around  his  person,  or  in  any  ve- 
hicle, or  leave  in  a  place,  intoxicating  liquors  with  intent 
to  dispose  of  same,  in  violation  of  law,  shall  be  termed  a 
"bootlegger,"  and  that  every  bootlegger  may  be  restrained 
by  injunction  from  doing  any  of  the  acts  prohibited  by  law, 
does  not  apply  to  the  case  of  an  expressman  aiding  in  de- 
livering and  distributing  intoxicating  liquors  ordered  by 
others ;  for  a  bootlegger  is  one  who  disposes  of  or  sells 
liquor  in  violation  of  law. 

Hathaway  v.  Benton,  172  la.  299,  154  N.  W.  474. 

Social  Club. — Under  a  statute  providing  that  the  con- 
ducting, maintaining,  carrying  on  or  engaging  in  the  sale 
—12 


178  TITLE  II— SEC.  23  of  ACT 

of  intoxicating  liquors,  and  all  means,  appliance,  fixtures, 
etc.,  are  declared  public  nuisance,  an  incorporated  social 
club  which  had  been  in  existence  for  25  years  with  a  limited 
membership,  and  dispensed  intoxicating  beverages  to  its 
members  at  cost  of  material  and  service  without  overhead 
charges,  as  a  mere  incident  to  the  main  purpose  of  the  club, 
the  social  intercourse  of  its  members,  no  person  not  a  mem- 
ber of  the  club,  being  permitted  to  obtain  anything  from  the 
club  at  his  own  expense,  was  not  guilty  of  conducting  a  nui- 
sance; the  sale  of  intoxicating  liquors  as  a  business  and  for 
profit,  being  the  nuisance  contemplated  by  the  Legislature. 

State  v.  Mountain  City  Club,  136  Tenn.  (9  Thompson) 
102,  188  S.  W.  579. 

But  it  has  also  been  held  that  a  place  of  resort  is  a  nui- 
sance if  used  by  a  club  either  to  sell  intoxicating  liquors  to 
its  members,  or  to  distribute  among  its  members  intoxicat- 
ing liquors  owned  by  them  in  common,  or  to  procure  for 
and  dispense  to  its  members  intoxicating  liquors  which  are 
bought  for  and  belong  to  them  individually. 

State  v.  Kapicsky,  105  Me.  127,  73  Atl.  830,  23  L.  R. 
A.,  N.  S.,  737. 

And  if  a  club,  by  its  agent,  purchase  and  stores  intoxi- 
cating liquor  for  its  members  and  deals  out  in  portions  to 
each  member  upon  his  order  the  liquors  belonging  to  and 
kept  for  him  and  keeps  a  place  for  that  purpose,  such  place 
is  a  common  nuisance  under  the  statute. 

State  v.  Kapicsky,  105  Me.  127,  73  Atl.  830,  23  L.  R. 
A.,  N.  S.,  737. 

Voluntary  Abatement. — And  where  a  fraternal  organ- 
ization periodically  permits  intoxicating  liquors  to  be 
brought  upon  its  premises  and  permits  its  members  to 
gather  there  for  the  purpose  of  drinking  such  liquors,  its 
premises  thereby  become  a  nuisance  which  may  be  enjoined 
and  abated;  but  where  the  officers  and  members  of  such 
organization  are  notified  by  the  responsible  public  officers  to 
quit  such  practices  under  threat  of  prosecution  and  they  do 
quit  in  apparent  good  faith  and  remove  all  liquor  para- 
phernalia from  their  premises,  the  lodge  and  its  property 
cannot  be  subjected  to  an  injunction  as  an  existing  nuisance 


TITLE  II— SEC.  23  OF  ACT  179 

in  a  suit  commenced  after  offensive  practices  have  been 
definitely  and  permanently  abandoned. 

State  v.  Midland  Aerie  No.  412,  Fraternal  Order  of 
Eagles,  98  Kan.  793,  161  Pac.  903. 

Clubhouse  as  "Place  of  Resort." — Where  a  statute 
provides  that  all  places  of  resort  where  intoxicating  liquors 
are  kept,  sold,  or  given  away,  drank,  or  dispensed  in  any 
way  not  provided  by  law  are  common  nuisances,  held,  that 
a  "place  of  resort"  does  not  mean  a  place  to  which  the  pub- 
lic generally  may  resort,  but  includes  places  to  which  resort 
is  had  by  a  limited  class,  and  hence  included  a  clubhouse  to 
which  members  and  their  guests  were  admitted,  and  who 
drank  their  own  liquor  there,  kept  in  lockers  which  were 
their  own  property. 

State  v.  Cumberland  Club,  112  Me.  196,  91  Atl.  911. 

Injunction  against  Transportation  Company.— Under 
the  Texas  statute  injunction  will  lie  to  restrain  a  railroad 
from  using  its  transportation  facilities  in  the  state  for  re- 
ceiving, transporting,  or  delivering  intoxicants  except  for 
medicinal,  scientific,  mechanical,  or  sacramental  purposes. 

Gulf,  etc.,  R.  Co.  v.  State  (Tex.  Civ.  App.),  212  S.  W. 
845. 

Injunction  against  Illegal  Sale  of  Extracts. — In- 
junction lies  against  illegal  sale  of  flavoring  extracts  by 
grocer  for  beverage  purposes,  under  the  Iowa  statute. 

State  v.  Klein  (la.),  174  N.  W.  481. 

Acts  to  Be  Restrained  Must  Be  Unlawful. — "In  those 
instances  in  which  injunction  lies  to  prevent  conduct 
amounting  to  a  nuisance  abatable  by  such  remedy,  it  is  lim- 
ited to  unlawful  acts  and  is  not  available  as  a  means  of  pre- 
vention of  lawful  acts.  Only  so  much  of  such  conduct  as 
is  unlawful  can  be  restrained." 

State  v.  Baltimore,  etc.,  R.  Co.,  78  W.  Va.  526,  89  S. 
E.  288,  L.  R.  A.  1916F,  1001. 

Thus,  where  a  club  might  lawfully  dispense  liquor  to  its 
members  and  guests,  the  state  was  not  entitled  to  restrain 


180  TITLE  II— SEC.  23  OF  ACT 

it  from  so  dispensing  the  same  on  the  ground  that  such  was 
not  within  its  corporate  powers. 

Country  Club  v.  State   (Tex.),  214  S.  W.  296. 

Constitutionality. 

A  statute,  making  the  conducting,  maintaining,  carrying 
on,  or  engaging  in  the  sale  of  intoxicating  liquors,  and  all 
building  nuisances,  subject  to  abatement  thereunder,  and 
authorizing  injunction  restraining  the  continuance  of  such 
nuisances  and  closing  the  building  or  place  where  it  is  con- 
ducted is  constitutional. 

State  v.  Ragghianti,  129  Tenn.  (2  Thompson)  560,  167 
,S.  W.  689. 

And  such  a  statute  providing  that  all  places  in  a  prohi- 
bition district  where  intoxicating  liquors  are  sold  in  viola- 
tion of  law,  etc.,  are  common  nuisances  and  may  be  abated 
and  enjoined,  when  construed  to  permit  a  temporary  in- 
junction closing  a  hotel  which  had  been  used  for  the  un- 
lawful sale  of  intoxicating  liquors,  does  not  deprive  the 
hotel  keeper  of  his  property  without  due  process  of  law, 
though  a  permanent  injunction  against  operating  the  hotel 
would  have  that  effect. 

State  v.  Kasiska,  27  Idaho  548,  150  Pac.  17. 

A  statute  providing  for  the  issuance  of  an  injunction 
against  liquor  nuisances,  and  authorizing  the  seizure  and 
destruction  of  property  used  in  maintaining  the  nuisance, 
is  a  valid  exercise  of  the  power  to  enact  laws  for  seizure  of 
property  attempted  to  be  used  for  an  unlawful  purpose  or 
in  an  unlawful  manner. 

In  re  State,  179  Ala.  639,  60  So.  285. 

Such  statute  gives  a  cumulative  remedy  in  equity  and  the 
power  of  the  legislature  to  provide  such  cumulative  equi- 
table remedy  cannot  be  successfully  questioned.  It  was  in- 
voked, and,  sub  silentia,  sanctioned  in  Marvin  v.  Larson, 
153  Wis.  488,  140  N.  W.  285. 

State  v.  Stoughton  Club,  163  Wis.  362,  158  N.  W.  93. 

Essential  Elements. 

It  is  essential  to  an  injunction  to  restrain  a  nuisance  that 


TITLE  II— SEC.  23  OF  ACT  181 

the  nuisance  should  exist  at  the  filing  of  the  petition,  but  it 
is  not  essential  that  the  nuisance  should  continue  up  to  the 
final  hearing;  and  while  the  abandonment  of  a  nuisance  in 
good  faith  before  the  final  hearing  should  have  weight  with 
the  court  in  the  .exercise  of  its  discretion,  a  mere  moving 
to  other  quarters  after  a  preliminary  restraining  order,  and 
on  the  eve  of  a  final  hearing,  with  nothing  to  show  a  com- 
plete and  bona  fide  abandonment  of  the  design  to  violate 
the  law,  is  not  sufficient  to  stay  injunction. 
State  v.  Lyon,  83  S.  C.  509,  65  S.  E.  730. 

Showing  of  Special  Injury.— A  statute  authorizing  in- 
junctions restraining  the  continuance  of  a  nuisance  consist- 
ing of  the  carrying  on  of  the  sale  of  intoxicating  liquors  on 
a  bill  filed  by  citizens  and  freeholders  or  by  the  attorney- 
general  or  district  attorney,  changes,  with  respect  to  the 
nuisance  to  which  it  relates,  the  rule  that  parties  seeking  to 
enjoin  a  nuisance  must  show  special  injury. 

State  v.  Ragghianti,  129  Tenn.  (2  Thompson)  560,  167 
S.  W.  689. 

Good  Faith  Immaterial. — Where  one  accused  of  main- 
taining a  liquor  nuisance  had  no  permit,  and  any  sale  by 
him  to  any  person  under  any  circumstances  was  unlawful, 
his  good  faith  or  reasonable  effort  to  avoid  imposition  can- 
not affect  the  question  of  his  unlawful  sales. 

Fisher  v.  Skoglund,  155  la.  440,  136  N.  W.  231. 


Procedure. 


Notice  and  Its  Necessity. — Assuming  that  under  a 
statute  relating  to  injunction  against  nuisance  consisting  of 
the  conducting,  maintaining  or  engaging  in  the  sale  of  in- 
toxicating liquors,  a  temporary  injunction  should  not  have 
been  issued  without  notice  to  the  defendant,  an  injunction 
issued  without  notice  was  merely  erroneous,  as  a  matter  of 
procedure,  and  was  not  void,  or  in  excess  of  jurisdiction, 
and  a  violation  thereof  was  punishable  as  a  contempt. 

State  v.  Ragghianti,  129  Tenn.  (2  Thompson)  560,  167 
S.  W.  689. 

Who  May  Prosecute. — Under  a  state  statute,  author- 
izing a  citizen  of  the  county  to  institute  and  maintain  a 


182  TITLE  II— SEC.  23  OF  ACT 

suit  to  enjoin  a  liquor  nuisance,  an  action  instituted  and 
maintained  by  a  citizen  of  the  county  will  not  be  abated 
merely  because  his  attorney  employed  detectives,  who  were 
paid  by  Anti-Saloon  League  not  incorporated  in  the  county, 
to  obtain  evidence  for  the  prosecution,  and  the  attorney,  a 
nonresident,  received  the  fees,  notwithstanding  section 
3459,  provided  that  action  must  be  prosecuted  by  the  real 
party  in  interest,  except  where  the  party  is  expressly  au- 
thorized by  statute  to  sue. 

Reusch  v.  Loserth,  158  la.  227,  139  N.  W.  454. 

Trial  by  Jury. — A  constitutional  provision  for  trial  by 
jury  is  not  violated  by  a  law  which  imposes  a  penalty  for 
the  illegal  sale  of  liquor,  and  gives  the  chancery  court  con- 
current jurisdiction  of  suits  for  penalties  and  power  to 
suppress  as  a  nuisance  any  place  of  business  where  the 
statute  is  violated,  and  to  punish  and  restrain  the  violators 
thereof,  since  a  jury  trial  therein  is  no  more  a  matter  of 
right  than  in  any  other  chancery  case,  and  since  the  chan- 
cellor is  empowered  by  law  to  award  a  jury  trial  when 
needed. 

State  v.  Marshall,  100  Miss.  626,  56  So.  792,  Ann.  Cas. 
1914A,  434. 

Persons   dealing  in   intoxicating  liquors   have  no  vested 
right  in  a  jury  trial  in  order  to  determine  whether  or  not 
their  place  of  business  is  a  public  nuisance.     For  such  pur- 
pose an  action  in  equity  constitutes  due  process  of  law. 
State  v.  Stoughton  Club,  163  Wis.  362,  158  N.  W.  93. 

Petition. — In  an  action  to  abate  a  liquor  nuisance,  a 
cause  of  action  was  stated  in  a  petition  which  alleged  that 
at  the  place  described  a  nuisance,  as  defined  in  the  statute, 
was  maintained  with  the  knowledge,  permission  and  con- 
sent of  the  defendants,  who  owned  the  property. 
State  v.  Glass,  99  Kan.  159,  160  Pac.  1145. 

Where  a  bill  for  injunction  against  a  liquor  nuisance  al- 
leged that  the  solicitor  was  informed  and  had  probable 
cause  for  believing  and  did  believe  that  the  accused  had  in 
his  possession,  or  operated  a  room  or  place  of  business, 
wherein  he  kept  for  sale  and  sold  prohibited  liquors;  that 


TITLE  II— SEC.  23  OF  ACT  183 

he  had  within  the  past  12  months  offered  and  sold  quanti- 
ties of  said  liquors  and  allowed  some  of  it  to  be  drunk  on 
the  premises,  creating  and  maintaining  a  common  liquor  nui- 
sance in  violation  of  law,  and  that  the  accused  was  not  a 
druggist  and  did  not  keep  a  drug  store  at  his  place  of  busi- 
ness, and  that  his  place  of  business  was  not  exclusively 
used  for  a  dwelling  house,  it  averred  no  facts  and  was 
insufficient  and  could  not  be  supported  by  the  rule  that  a 
bill  will  be  given  every  reasonable  intendment. 
Woodward  v.  State,  173  Ala.  7,  55  So.  506. 

Alleging  Details  of  Violation  of  Law.— A  petition  in 
a  suit  to  enjoin  a  liquor  nuisance,  which  alleges  that  de- 
fendant occupied  the  premises  described,  and  owned  and 
kept  thereon  intoxicating  liquors  with  intent  to  sell  the 
same  as  a  beverage  in  violation  of  law,  is  sufficiently  spe- 
cific as  against  a  motion  to  require  averments  stating  spe- 
cifically how,  and  in  what  manner,  if  any,  the  provisions  of 
the  mulct  law  have  been  violated  by  defendant. 

Fisher  v.  Stoevenor  &  Co.,  155  la.  548,  136  N.  W.  673. 

Alleging  Intent. — A  petition  praying  an  injunction,  and 
alleging  that  defendant  kept  intoxicating  liquor  with  in- 
tent to  sell  in  violation  of  the  law,  is  sufficiently  specific : 
the  allegation  of  keeping  with  intent  to  sell  'in  violation  of 
law  being  one  of  ultimate  fact. 

Bowers  v.  Maas,  154  la.  640,  135  N.  W.  25. 

Description  of  Premises. — In  a  prosecution  to  restrain 
a  liquor  nuisance  described  as  maintained  at  83  and  85 
Market  Street  in  a  certain  city,  such  description  would  be 
construed  to  include  premises  designated  as  83^  Market 
Street,  which  was  a  stairway  entrance  to  the  second  story 
of  the  building  described,  in  which  respondent  and  his  fam- 
ily lived. 

State  v.  Chicco,  82  S.  C.  122,  63  S.  E.  306. 

Description    of    Defendant. — An    allegation  that   one 
"did  keep  and  maintain"  a  liquor  nuisance  applies  either  to 
one  who  occupies  or  who  controls  the  occupation  and  pro- 
cures or  permits  the  illegal  use  of  the  place. 
State  v.  Fogg,  107  Me.  177,  77  Atl.  714. 


184  TITLE  II— SEC.  23  OF  ACT 

Alleging  Unlawful  Transportation  by  Carrier. — "A 

bill  praying  an  injunction  against  transportation  of  persons 
so  carrying  intoxicating  liquors,  by  common  carrier,  un- 
less such  carrier  through  its  agents,  servants  and  employees, 
has  first  ascertained  by  due  diligence  and  caution  and  in 
good  faith  that  such  liquors  are  not  intended  for  use  or  dis- 
position by  such  persons  contrary  to  law,  and  not  charging 
the  rendition  of  aid  and  assistance  to  any  particular  person 
in  his  violations  of  the  prohibition  laws,  by  the  carrier  so 
proceeded  against,  raises  no  question  as  to  right  in  the 
state  to  enjoin  such  transportation  as  to  particular  indi- 
viduals." 

State  v.  Baltimore,  etc.,  R.  Co.,  78  W.  Va.  526,  89  S. 
E.  288,  L.  R.  A.  1916F,  1001. 

The  allegation  of  a  petition  substantially  averring  the 
violation  of  three  sections  of  the  criminal  law  which  for- 
bade the  receiving,  storing,  keeping,  or  delivering  of  intox- 
icating liquors  without  a  license  as  a  dramshop  keeper  or 
a  wholesaler,  the  petition  wholly  failing  to  set  forth  any 
facts  showing  that  the  things  done  by  the  road  were  the 
proximate  and  efficient  cause  of  the  creation  of  a  public 
nuisance,  were  insufficient  to  give  the  equity  court  juris- 
diction, since  to  connect  the  railroad  with  the  public  nui- 
sance alleged  to  have  resulted  from  the  drunkenness  and 
disorder  consequent  upon  the  illicit  sale  of  liquor  it  was  in- 
dispensable that  plaintiff  show  that  such  drunkenness  and 
disorder  were  caused  directly  by  the  mere  act  of  the  road 
in  transporting  and  delivering  liquor  in  the  county,  or  that 
such  act  participated  in  bringing  about  the  condition. 
State  v.  Woolfolk  (Mo.),  190  S.  W.  877. 

A  bill  by  the  state,  by  its  solicitor,  against  an  interstate 
carrier  to  enjoin  the  maintenance  of  a  liquor  nuisance, 
which  alleges  that  the  carrier  has  a  warehouse,  where 
goods  received  are  stored  to  await  delivery  to  the  consign- 
ees; that  prohibited  liquors  are  received  at  the  warehouse 
in  large  quantities  and  at  frequent  intervals  for  delivery  to 
individuals  for  illegal  purposes;  that  prohibited  liquors  are 
received  by  the  carrier  for  distribution  or  delivery,  con- 
trary to  the  laws  of  the  state,  and  that  it  is  maintaining  a 
"liquor  nuisance" — charges  a  violation  of  the  law  by  the  car- 
rier and  authorizes  injunctive  relief,  the  words  "prohibited 


TITLE  II— SEC.  23  OF  ACT  185 

liquor"  meaning  intoxicating  liquors  which  under  the  law 

the  carrier  has  not  the  legal  right  to  have  in  its  possession. 

Southern  Exp.  Co.  v.  State,  188  Ala.  454,  66  So.  115. 

Bill  for  Injunction  against  Breach  of  Anti-Adver- 
tizing  Law. — A  bill  for  injunction  against  violations  of 
the  anti-advertising  liquor  law  need  not  negative  the  appli- 
cation of  the  rule  concerning  original  packages  in  interstate 
shipments,  since  that  is  a  matter  of  defense. 

Black  v.  Delaye,  193  Ala.  500,  68  So.  993. 

Cross  Petition. — A  cross  petition  filed  by  a  defendant 
city,  which  cross  petition  states  that  the  plaintiff  is  doing 
certain  specific  acts  which  are  in  violation  of  the  intoxicat- 
ing liquor  laws  of  this  state  and  the  ordinance  of  the  de- 
fendant city,  and  which  constitute  a  common  nuisance  as 
defined  by  the  law  of  the  state  and  the  ordinances  of  the 
city,  and  asks  for  an  injunction  against  the  doing  of  these 
acts,  states  a  cause  of  action. 

Kansas  City  Breweries  Co.  v.  Kansas  City,  96  Kan.  731, 
153  Pac.  523. 

Prayer  for  Greater  Relief  Than  Allowable. — Where 
a  complaint  in  a  proceeding  to  abate  and  enjoin  illegal  deal- 
ing in  intoxicating  liquors  states  a  good  cause  of  action,  it 
is  not  bad  because  the  complaint  seeks  greater  relief  than  is 
allowable,  by  praying  for  the  imposition  of  the  punishment 
provided  by  the  criminal  laws  for  the  illegal  sale  of  liquor, 
but  he  is  still  entitled  to  have  all  the  relief  to  which  he 
shows  a  right,  and  which  is  in  whole  or  in  part  appropriate 
to  the  prayer. 

State  v.   Marshall,   100  Miss.  626,   56  So.  792,  Ann. 
Cas.   1914A,  434. 

Plea  and  Defenses. 

Plea  of  Abatement  of  Nuisance. — In  an  action  for  an 
injunction  to  abate  a  liquor  nuisance,  the  plea  that  defend- 
ant had  already  abated  the  nuisance  himself  is  addressed 
largely  to  the  discretion  of  the  trial  court,  and  the  issu- 
ance of  an  injunction  is  no  abuse  of  the  court's  discretion, 


186  TITLE  II— SEC.  23  OF  ACT 

where  the  defendant  abated  the  nuisance  only  the  night 
before  the  trial. 

Bowers  v.  Maas,  154  la.  640,  135  N.  W.  25. 

Plea  of  Pending  Appeal  in  Search  Warrant  Case.— 

In  a  civil  suit  to  enjoin  a  liquor  nuisance  in  a  bowling  alley, 
an  order  for  the  destruction  of  the  liquors  made  by  a  jus- 
tice and  an  appeal  to  the  district  court  in  a  search  warrant 
proceeding,  being  a  quasi  criminal  proceeding  not  between 
the  same  parties  nor  involving  the  same  issues  and  seeking 
a  different  and  more  limited  relief,  cannot  be  pleaded  in 
abatement  and  is  not  a  bar. 

State  v.  Knapp,  178  la.  25,  158  N.  W.  515. 

Plea  That  Acts  Were  in  Open  Violation  of  Law.— 

It  is  no  defense  to  a  proceeding  brought  to  abate  and  en- 
join a  blind  tiger  as  a  nuisance  that  the  sale  of  spirituous, 
malt,  or  intoxicating  liquor  was  in  open  violation  of  law. 
Thompson  v.  Simmons  &  Co.,  139  Ga.  845,  78  S.  E. 
419. 

Death  of  Defendant  Abates  Proceeding. — Where  the 
defendant  in  an  action  to  enjoin  a  liquor  nuisance  dies  pend- 
ing appeal,  the  action  abates,  and  the  liquor  on  defendant's 
premises  cannot  be  adjudged  a  nuisance,  since  there  can  be 
no  intent  by  defendant  to  keep  and  sell  liquor  in  violation 
of  law,  which  is  a  necessary  element. 

Babbitt  v.  Corrigan,  157  la.  382,  138  N.  W.  466. 

Evidence. 

Admissibility — Acts  Not  Alleged. — Under  a  petition 
praying  an  injunction  and  alleging  that  defendant  was 
keeping  intoxicating  liquor  with  intent  to  sell  in  violation 
of  the  law,  evidence  of  unlawful  sales,  or  other  unlawful 
acts  or  omission,  not  specifically  alleged,  is  admissible,  for 
the  keeping  with  intent  is  the  ultimate  fact  which  can  only 
be  proven  by  the  unlawful  acts. 

Bowers  v.  Maas,  154  la.  640,  135  N.  \Y.  25. 

Proof  of  Other  Dates. — Where  the  defendant  is 
charged  with  maintaining  a  liquor  nuisance  on  the  20th  day 


TITLE  II— SEC.  23  OF  ACT  187 

of  January,  1915,  and  evidence  is  introduced  to  sustain  the 
information  as  to  that  date,  and  further  evidence  is  intro- 
duced to  show  that  the  defendant  was  maintaining  a  liq- 
uor nuisance  on  the  8th  day  of  September  1914,  the  latter 
evidence  is  admissible,  where  evidence  is  also  introduced 
tending  to  show  a  continuation  of  the  nuisance  between  the 
two  dates. 

State  v.  Maguire,  31  Idaho  24,  169  Pac.  175. 

Surrounding  Circumstances. — In  a  trial  for  maintain- 
ing a  liquor  nuisance  testimony  as  to  what  was  found  on 
the  place,  indicating  the  presence  of  intoxicating  liquors, 
sounds  of  disturbance  at  night  on  the  Fourth  of  July,  and 
acts  of  an  intoxicated  man  who  was  neither  a  boarder  nor 
visitor  at  the  place,  was  properly  received  to  connect  ac- 
cused with  control  of  the  place  and  the  acts  done  and  con- 
ditions found  there,  as  was  evidence  of  shipments  from  a 
particular  city  of  liquors  to  him  up  to  the  time  when  whisky 
bottles  with  labels  bearing  the  name  of  that  city  were  found 
at  the  place. 

State  v.  Fogg,  107  Me.  177,  77  Atl.  714. 

Sold  as  Beverage — Use  Immaterial. — In  a  suit  to  en- 
join the  sale  of  intoxicating  liquors,  if  the  liquor  in  ques- 
tion was  sold  as  a  beverage  and  contained  alcohol,  it  would 
not  be  material  whether  it  was  actually  used  as  a  beverage 
or  not. 

State  v.  Silka,  179  la.  663,  161  N.  W.  703. 

Weight  and  Sufficiency. — In  an  action  to  enjoin  a  liq- 
uor nuisance,  evidence  that  defendant  was  the  agent  of  the 
corporation  owning  the  building,  and  that  he  purchased 
and  placed  the  liquor  in  the  building  for  sale,  was  suffi- 
cient to  sustain  a  judgment  for  plaintiff. 

Barber  v.  Dapolonia  (la.),  171  N.  W.  586. 

Under  statutes  respectively  providing  that,  in  action  to 
enjoin  liquor  nuisances  evidence  of  the  general  reputation 
of  the  place  described  shall  be  admissible  to  establish  the 
existence  of  the  nuisance,  and  that  the  finding  of  intoxi- 
cating liquors  in  the  possession  of  one  not  authorized  to 
sell  shall  be  presumptive  evidence  of  a  violation  of  law, 


188  TITLE  II— SEC.  23  OF  ACT 

the  finding  of  several  cases  of  beer,  and  of  empty  bottles 
coupled  with  the  general  reputation  that  the  place  in  ques- 
tion was  one  where  intoxicants  were  unlawfully  sold,  is 
sufficient  to  establish  prima  facie  the  existence  of  the  liq- 
uor nuisance. 

Shideler  v.  Naughton,  163  la.  616,  145  N.  W.  280. 
State  v.  Silka,  179  la.  663,  161  N.  W.  703. 
McMillan  v.  Metcalfe  (la.),  174  N.  W.  481. 

Burden  of  Rebutting  Prima  Facie  Case. — In  a  suit 
to  enjoin  a  liquor  nuisance,  where  the  evidence  prima  facie 
established  its  existence,  the  burden  is  on  defendant  to  re- 
but the  prima  facie  case. 

Shideler  v.  Naughton,  163  la.  616,  145  N.  W.  280. 

Questions  for  Jury. — In  a  proceeding  for  an  injunc- 
tion against  the  use  of  premises  for  the  illegal  sale  of  in- 
toxicating liquors,  authorized  by  statute  whether  the  prem- 
ises are  used  for  the  illegal  sale  of  liquors  must  be  deter- 
mined by  a  jury  unless  a  jury  trial  is  waived. 

State  v.  Leary,  75  N.  H.  459,  76  Atl.  192,  44  L.  R.  A., 
N.  S.,  457n. 

Hearing. — Despite  a  statute  providing  that  an  applica- 
tion for  a  temporary  injunction  to  abate  a  liquor  nuisance 
may  be  supported  by  evidence  in  the  form  of  affidavit,  dep- 
ositions, oral  testimony,  or  otherwise,  the  final  hearing  on 
the  merits  is  on  evidence  in  conformity  with  the  practice 
obtaining  in  the  trial  of  equity  causes  generally,  and  plain- 
tiff is  entitled  to  have  the  cause  set  down  for  trial  and 
hearing  on  evidence  adduced  according  to  the  usual  prac- 
tice notwithstanding  defendant's  affidavit  in  opposition  to 
the  motion  for  a  temporary  injunction  denied  the  conten- 
tion of  plaintiff. 

Batten  v.  Snearly,  168  la.  362,  150  N.  W.  583. 

Costs. — Though  an  injunction  in  a  suit  to  enjoin  a  liq- 
uor nuisance  be  denied,  because  defendants  in  good  faith, 
before  commencement  of  the  action,  abandoned  the  prac- 
tice of  handling  liquor,  yet  this  having  been  done  after  the 
petition  was  sworn  to  and  plaintiff  not  appearing  to  have 


TITLE  II— Sec.  23  OF  ACT  189 

known  thereof  when  he  filed  his  petition,  or  to  have  been 
actuated  by  motive  other  than  to  secure  enforcement  of 
the  law,  costs  should  be  taxed  against  defendant. 

Davidson  v.  Benevolent  and  Protective  Order  of  Elks, 
No.  374,  174  la.  1,  156  N.  W.  187. 

In  a  suit  for  the  abatement  of  a  liquor  nuisance  in  a  bowl- 
ing alley,  brought  against  the  tenant  and  the  owner  of  the 
building,  there  being  no  testimony  that  the  landlord  had 
any  knowledge  of  her  codefendant's  use  of  the  property, 
it  was  improper  to  tax  costs  to  the  landlord. 

State  v.  Knapp,  178  la.  25.  158  N.  W.  515. 

In  a  suit  to  enjoin  the  sale  of  intoxicating  liquors,  on 
trial  in  vacation  as  to  one  of  the  defendants  on  application 
for  a  temporary  injunction,  a  decree,  granting  a  temporary 
injunction,  providing  that  the  costs  upon  the  hearing  for 
temporary  writ  of  injunction  be  taxed  against  a  defendant, 
was  not  a  judgment  against  defendant  for  costs,  but  sim- 
ply a  provision  that  the  costs  on  the  temporary  injunction 
be  so  taxed  because  they  were  made  in  the  contest  by  this 
defendant,  and  that  as  between  him  and  the  other  defend- 
ants they  should  be  taxed  to  him,  and  that  the  cause  be 
heard,  later  as  to  other  defendants. 

State  v.  Silka,  179  la.  663,  161  N.  W.  703. 

Issuance  of  Injunction. — \Yhere  a  corporation  organ- 
ized for  a  legitimate  purpose  dispensed  intoxicating  liquors 
in  violation  of  law,  and  the  evidence  warranted  the  infer- 
ence that  it  would  continue  to  do  so  unless  restrained,  and 
it  claimed  the  right  to  do  so,  the  court  will  enjoin  the  cor- 
poration and  the  persons  actually  participating  in  the  ille- 
gal dispensing  of  liquor. 

Shideler  v.  Tribe  of  the  Sioux,  158  la.  417,  139  N.  W. 
897. 

In  an  action  to  enjoin  alleged  liquor  nuisance,  injunction 
should  be  promptly  granted  and  without  any  evasion,  where 
the  evidence  is  sufficient  to  show  a  violation  of  law,  not- 
withstanding interest  or  motive  of  attorneys  and  witnesses. 
Barber  v.  Buonanni  Co.,  179  la.  642,  161  N.  W.  688, 
689. 


190  TITLE  II— SEC.  23  OF  ACT 

On  a  petition  to  enjoin  one  styling  himself  J.  W.  Lang, 
from  violating  the  liquor  laws,  making  C.  W.  Nies,  a  party, 
and  charging  that  defendant  Nies,  "alias  J.  W.  Lang,"  was 
maintaining  the  nuisance  to  abate  which  the  injunction  was 
sought,  where  the  trial  court  found  that  Lang  was  an  alias, 
Nies  might  be  punished  in  his  own  proper  person. 
Nies  v.  Jepson,  174  la.  188,  156  N.  W.  292. 

Proof  that  several  illegal  sales  of  intoxicants  were  made 
from  defendant's  drug  store  within  a  limited  time  war- 
rants the  issuance  of  an  injunction  to  restrain  the  nuisance, 
under  the  rule  that  knowledge  may  be  shown  by  the  doing 
of  like  acts;  such  evidence  warranting  a  finding  that  de- 
fendant has  knowledge  of  the  sales. 

Barber  v.  City  Drug  Store,  173  la.  651,  155  N.  W.  992. 

Discretion  of  Court. — The  discretion  of  the  trial  court 
in  refusing  permanent  injunction  of  an  alleged  liquor  nui- 
sance, where  it  appears  satisfactorily  to  it  that  it  has  been 
in  good  faith  abated,  is  not  unlimited,  and  where  the  exist- 
ence of  the  nuisance  is  conclusively  shown,  a  writ  for  in- 
junction is  justified. 

Fisher  v.  Skoglund,  155  la.  440,  136  N.  W.  231. 

Where  the  evidence  is  conflicting,  the  court  below  did 
not  abuse  its  discretion  in  granting  an  interlocutory  injunc- 
tion restraining  the  defendant  from  maintaining  a  "blind 
tiger"  and  selling  intoxicating  beers  and  intoxicating  liq- 
uors at  the  place. 

Loh  v.  Howard,  141  Ga.  509,  81  S.  E.  198. 

Breadth  of  Injunction. — An  injunction  against  main- 
taining a  liquor  nuisance  should  be  broad  enough  to  pre- 
clude every  possibility  of  the  continuation  or  reopening  of 
the  nuisance  by  the  persons  enjoined  or  by  any  one  acting 
for,  by,  through  or  under  them  or  either  of  them  or  with 
their  permission. 

State  v.  Glass,  99  Kan.  159,  160  Pac.  1145. 

\\  here  the  allegations  of  a  petition  were  that  the  de- 
fendants were  operating  and  maintaining  a  blind  tiger,  or 
liquor  nuisance  at  a  particular  place,  by  there  selling  spirit- 


TITLE  II— SEC.  23  OF  ACT  191 

uous  malt,  and  intoxicating  liquors  in  violation  of  law,  and 
there  was  no  contention  that  the  defendants  were  main- 
taining elsewhere  a  similar  nuisance,  either  in  connection 
with,  or  independently  of,  the  one  alleged  to  exist  at  the 
place  designated  in  the  petition,  nor  even  that  the  defend- 
ants were  contemplating  or  intending  to  elsewhere  create 
and  maintain  such  nuisance,  the  judge  was  not  authorized 
to  grant  an  interlocutory  order  enjoining  the  defendants 
from  maintaining  a  nuisance,  not  noly  at  the  place  desig- 
nated in  the  petition,  but  elsewhere. 

Watkins  v.  Wilkerson,  141  Ga.  163,  80  S.  E.  718,  Ann. 
Cas.  1915C,  1124. 

Injunction  against  Automobile  after  Destruction  of 
Liquor  Seized. — Where  intoxicating  liquors  were  being 
sold  from  an  automobile,  and  the  automobile  and  liquor 
were  seized,  and  the  liquor  destroyed,  the  destruction  of 
the  liquor  was  not  necessarily  an  abatement  of  the  nui- 
sance and  there  still  might  be  grounds  for  proceedings  in 
injunction  against  the  automobile. 

State  v.  Raph  (la.),  168  N.  W.  259. 

Denial  of  Injunction. — Where,  in  an  action  to  enjoin 
liquor  nuisances  because  the  statements  of  consent  filed  by 
defendants  were  insufficient,  it  appeared  that  defendants 
had  been  out  of  business  10  days  before  their  case  came  on 
for  trial  in  the  district  court,  and  it  was  not  claimed  that 
they  intended  to  resume  the  business,  the  injunction  was 
properly  denied. 

State  v.  Harrison,  159  la.  67,  140  N.  W.  223. 

An  injunction,  restraining  the  maintenance  of  a  liquor 
nuisance,  cannot  be  issued  as  to  a  defendant  without  proof 
that  he  was  in  control  of  the  drug  store  where  the  sales 
were  made  at  that  time,  it  appearing  that  he  had  subse- 
quently purchased  the  same. 

Barber  v.  City  Drug  Store,  173  la.  651,  155  N.  W.  992. 

In  a  prosecution  to  abate  and  enjoin  a  blind  tiger,  the  de- 
fendant cannot  be  adjudged  to  be  disqualified  from  doing 
business  under  a  near  beer  license  which  he  holds  and  from 
ever  doing  business  for  himself  under  any  such  license,  and 


192  TITLE  II— SEC.  23  OF  ACT 

from  being  employed  by  another  engaged  in  business  under 
such  a  license,  and,  by  reason  of  such  disqualification,  be 
enjoined  from  doing  business  under  such  license  until  the 
further  order  of  the  court. 

Cassidy  v.  Howard,  140  Ga.  844,  80  S.  E.  1. 

Injunction  Unnecessary  after  Abatement. — Where 
officers  found  a  barrel  of  whisky  under  defendant's  stable 
and  two  other  barrels  buried  near  by,  and  it  was  their 
duty  to  seize  the  same  to  be  forfeited  to  the  state,  and  it 
will  be  presumed  that  they  discharged  such  duty,  and,  tb? 
nuisance  being  abated,  it  was  error  to  enjoin  the  defendant 
from  thenceforth  receiving  liquor  and  having  it  in  his  pos- 
session ;  there  being  no  evidence  that  he  intended  so  to  do. 

Thornton  v.  Skelton  (Ga.  App.),  99  S.  E.  299. 

The  court  in  a  suit  to  enjoin  a  liquor  nuisance  may  deny 
an  injunction,  defendants  in  good  faith,  before  the  action 
was  commenced,  though  to  avoid  being  enjoined,  having 
abandoned  the  practice  of  handling  liquors  in  their  club- 
rooms. 

Davidson  v.  Benevolent  and  Protective  Order  of  Elks, 
No.  374,  174  la.  1,  156  N.  W.  187. 

Abatement. 

See  also  ante,  under  Sec.  21. 

In  a  suit  to  enjoin  a  liquor  nuisance  in  a  bowling  alley, 
where  the  defendant  did  hot  know  that  the  liquor  he  was 
selling  was  intoxicating,  abandoned  the  sale,  and  volun- 
tarily abated  the  nuisance  before  commencement  of  the 
suit,  a  decree  and  order  of  abatement  may  be  entered  to 
insure  complete  repentance. 

State  v.  Knapp,  178  la.  25,  158  N.  W.  515. 

Under  statute  declaring  the  building  in  which  a  liquor 
nuisance  is  maintained  a  nuisance  and  providing  that  an 
order  of  abatement  shall  direct  the  effectual  closing  of  the 
building,  in  a  suit  to  abate  a  liquor  nuisance  in  a  bowling 
alley  for  illegal  sales  by  a  tenant,  an  order  of  abatement 
and  for  the  closing  of  the  building  were  proper,  although 


TITLE  II— SEC.  23  OF  ACT  193 

the  owner,  made  defendant,  had  no  notice  or  knowledge  of 
the  illegal  sales. 

State  v.  Knapp,  178  la.  25,  158  N.  W.  515. 

Blind  tigers  are  public  nuisances,  affecting  the  whdle 
community,  and,  as  such,  they  may  be  abated. 

Ruston  v.  Fountain,  118  La.  53,  42  So.  644. 
Legg  v.  Anderson,  116  Ga.  401,  42  S.  E.  720. 
Lofton  v.  Collins,  117  Ga.  434,  43  S.  E.  780,  61  L.  R. 

A.  150. 

Rush  v.  Commonwealth   (Ky.),  47  S.  W.  586. 
Mugler  v.  Kansas,  123  U.  S.  623,  8  Sup.  Ct.  273,  31 

L.  Ed.  205. 
Purity  Extract,  etc.,  Co.  v.  Lynch,  226  U.  S.  192,  33 

Sup.  Ct.  44,  57  L.  Ed.  184. 
Shreveport  v.  Maroun,  134  La.  490,  64  So.  388. 

Relief  on  Giving  Bond  by  Defendant. — Under  direct 
provisions  of  a  statute,  the  owner  of  a  building,  in  which 
a  liquor  nuisance  has  been  maintained  without  his  knowl- 
edge and  an  order  of  abatement  entered  closing  the  build- 
ing, may  upon  establishing  his  good  faith,  paying  costs, 
and  filing  bond  to  full  value  of  the  property  to  prevent  the 
nuisance  being  established,  recover  possession,  and  have 
the  order  of  abatement  canceled  so  far  as  it  relates  to  the 
property. 

State  v.  Knapp,  178  la.  25,  158  N.  W.  515. 

Appeal  or  Certiorari. — On  certiorari  by  one  found 
guilty  of  contempt  in  being  concerned  in  the  liquor  traffic 
in  violation  of  an  injunction,  weight  is  given  the  finding 
of  the  trial  court. 

Button  v.  Anderson  (la.),  145  N.  W.  321. 

On  certiorari  to  review  order  finding  accused  guilty  of 
contempt  by  violating  injunction  against  illegal  sale  of 
intoxicating  liquors,  while  evidence  to  sustain  the  finding 
must  amount  to  more  than  the  mere  preponderance  which 
sustains  recovery  of  the  law  side,  violation  need  not  be 
proved  beyond  a  reasonable  doubt. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 
—13 


194  TITLE  II— SEC.  23  o*  ACT 

On  certiorari  to  review  order  adjudging  accused  guilty 
of  contempt  in  violating  an  injunction  restraining  illegal 
sale  of  intoxicating  liquors,  the  review  is  not  de  novo,  but 
the  finding  below  does  not  have  as  much  weight  as  a  ver- 
dict. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 

Reversal. — Where  an  injunction  against  maintaining  a 
liquor  nuisance  in  a  building  was  issued  against  the  owner 
and  others,  the  reversal  of  the  decree,  as  against  one  not 
shown  to  have  been  in  control  of  the  business  or  building 
at  the  time  of  the  nuisance  will  not  carry  with  it  the  decree 
against  the  owner. 

Barber  v.  City  Drug  Store,  173  la.  651,  155  N.  W.  992. 


TITLE  II— SEC.  24 

Contempt  of  Court  for  Violation  of  Injunction Proceed- 
ings— Punishment. 

* 

SEC.  24.  In  the  case  of  the  violation  of  any  injunc- 
tion, temporary  or  permanent,  granted  pursuant  to  the 
provisions  of  this  title,  the  court,  or  in  vacation  a  judge 
thereof,  may  summarily  try  and  punish  the  defendant. 
The  proceedings  for  punishment  for  contempt  shall  be 
commenced  by  filing  with  the  clerk  of  the  court  from 
which  such  injunction  issued  information  under  oath 
setting  out  the  alleged  facts  constituting  the  violation, 
whereupon  the  court  or  judge  shall  forthwith  cause  a 
warrant  to  issue  under  which  the  defendant  shall  be 
arrested.  The  trial  may  be  had  upon  affidavits,  or  ei- 
ther party  may  demand  the  production  and  oral  exam- 
ination of  the  witnesses.  Any  person  found  guilty  of 
contempt  under  the  provisions  of  this  section  shall  be 
punished  by  a  fine  of  not  less  than  $500  nor  more  than 
$1,000,  or  by  imprisonment  of  not  less  than  thirty  days 
nor  more  than  twelve  months,  or  by  both  fine  and  im- 
prisonment. 

Violation  by  Tenant— Presumption. — Statutory  pro- 
hibition against  violating  liquor  laws  by  servant,  agent,  em- 
ployee, or  tenants,  and  commands  in  injunctions  against 
sale  by  servant,  agent,  tenant,  or  employee,  mean,  so  far 
as  contempt  proceedings  are  concerned,  that  the  landlord 
cannot  shield  himself  by  having  his  tenant  sell  the  liquor; 
that  the  finding  of  liquor  in  a  hotel  raises  a  presumption 
that  the  owner  has  violated  the  law  through  his  tenants; 
but  that  such  presumption  is  not  conclusive,  and  the  doc- 
trine of  landlord  and  tenant  or  respondent  superior  does 
not  apply. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 


196  TITLE  II— SEC.  24  OF  ACT 

Good  Faith  of  Defendant  Immaterial. — The  test 
whether  liquor  is  intoxicating,  and  whether  the  seller  has 
violated  injunction  restraining  sale  of  intoxicating  liquor, 
is  the  character  of  the  liquor,  and  not  the  good  faith  of  the 
defendant,  so  that  evidence  that  the  defendant  did  not 
know  of  the  intoxicating  character  of  the  liquor  is  incom- 
petent. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 

Effect  Not  Avoided  by  Removal  to  Place  in  Same 
County. — Injunction  against  an  incorporated  club  and  its 
officers  from  using  the  premises  of  the  club,  or  any  part, 
for  selling  spirituous,  vinous,  or  malt  liquors,  etc.,  related 
to  the  business  or  occupation  in  which  the  club  and  its  of- 
ficers were  engaged,  and  could  not  be  avoided  by  removal 
to  another  town  in  the  same  county. 

Ex  parte  Alderete  (Tex.  Cr.  App.),  203  S.  W.  763. 

Nature  of  Proceeding. — A  charge  of  contempt  of  court 
for  violating  an  injunction  inhibiting  the  sale  of  intoxicat- 
ing liquors  as  a  nuisance,  is  a  criminal  contempt  which  is 
punitive  in  character  to  vindicate  the  authority  of  the  law 
and  of  the  court  as,  an  organ  of  society,  and  which,  though 
it  may  arise  in  private  litigation,  raises  an  issue  between  the 
public  and  the  accused,  not  a  civil  contempt,  which  is  a 
proceeding  in  furtherance  of  the  right  of  a  private  person 
which  the  court  has  determined  he  as  a  litigant  is  entitled  to. 

Anderson   v.   Daugherty,    137   Tenn.    (10   Thompson) 
125,  191  S.  W.  974. 

Governed  by  Special  Statute. — The  procedure  in  con- 
tempt cases  arising  under  the  prohibitory  law  is  governed 
by  the  special  provisions  found  in  such  law,  and  the  pro- 
visions of  the  law  relating  to  contempts  in  general  do  not 
govern  in  contempt  cases  arising  under  the  prohibitory  law. 

State  v.  Finlayson  (N.  D.),  170  N.  W.  910. 

"All  contempt  proceedings,  whether  for  violation  of  a 
liquor  injunction  or  any  other  decree  or  order  of  the  court, 
are  special  and  sui  generis  and  the  general  procedural  rules 
do  not  apply  thereto,  save  as  expressly  provided.  In  their 


TITLE  II— SEC.  24  OF  ACT  197 

nature  they  are  both  criminal  and  civil,  and  by  some  courts 
they  are  held  to  partake  more  of  nature  of  criminal  than 
civil  proceedings.  See  Wells  v.  District  Court,  126  la.  340, 
102  N.  W.  106;  Grier  r.  Johnson,  88  la.  99,  55  N.  W.  80; 
Black  v.  State,  75  Neb.  603,  106  N.  W.  787;  State  v.  Dis- 
trict Court,  24  Mont.  33,  60  Pac.  493 ;  Raymert  v.  Smith,  5 
Cal  App.  380,  90  Pac.  470;  Ex  parte  Kearney,  7  Wheat  (U. 
S.)  38,  5  L.  Ed.  391;  Gompers  v.  Bucks  Stove  Co.,  221  U 
S.  418,  31  Sup.  Ct.  492,  55  L.  Ed.  797,  34  L.  R.  A.,  N.  S., 
874n." 

Tuttle  v.  Hutchison,  173  la.  503,  151  N.  W.  845,  851. 

Where  either  of  two  injunctions  prohibiting  defendants 
from  selling,  etc.,  intoxicating  liquors,  is  good,  and  its  provi- 
sions broad  enough  to  cover  the  act  charged  against  him 
on  an  information  for  violation  of  such  injunction,  he  is 
guilty  of  contempt  for  the  violation  of  either. 

State  v.  District  Court,  176  la.  178,  157  N.  W.  737. 

In  contempt  proceedings  for  violation  of  two  decrees  of 
injunction  prohibiting  defendant  from  selling,  etc.,  intoxi- 
cating liquors,  where  the  provisions  of  the  two  decrees  are 
the  same,  they  should  be  treated  as  one  decree. 

State  v.  District  Court,  176  la.  178,  157  N.  W.  737. 

Knowledge  or  Intent. — If  landlord  of  hotel  knew  that 
soft  drinks  were  to  be  served  and  did  not  know  that  intoxi- 
cating liquors  were  to  be  served,  she  was  not  criminally  lia- 
ble for  contempt  by  violating  injunction  against  sales  of  in- 
toxcating  liquors;  but,  if  she  knew  that  a  drink  called 
"malta"  was  to  be  sold  and  it  was  in  fact  intoxicating,  she 
was  criminally  liable,  though  she  thought  it  was  a  soft  drink. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 

Trial  by  Jury. — In  a  contempt  proceeding  under  the 
North  Dakota  Prohibitory  Law,  the  party  charged  with  con- 
tempt is  not  entitled  to  a  trial  by  jury. 

State  v.  Markuson,  5  N.  D.  147,  64  N.  W.  934. 
S.  C.,  7  N.  D.  155,  73  N.  W.  82,  reaffirmed. 
State  v.  Finlayson  (N.  D.),  170  N.  W.  910. 


198  TITLE  II— SEC.  24  OF  ACT 

Allegations  of  Petition. — Where,  upon  a  bill  alleging 
that  defendant  was  engaged  in  the  sale  of  intoxicating  liq- 
uors, a  temporary  injunction  was  issued  enjoining  defend- 
ant from  further  engaging  in  the  sale  of  liquors,  from  mov- 
ing or  disturbing  his  stock  of  liquors  and  bar  fixtures,  or 
from  entering  the  barroom  of  his  building  and  interfering 
therewith,  a  petition  for  an  attachment  for  contempt,  charg- 
ing that  he  had  continued  the  sales  of  intoxicating  liquor 
in  willful  disobedience  of  the  injunction  showed  a  viola- 
tion of  the  injunction;  it  not  being  pretended  that  defend- 
ant supposed  himself  to  be  charged  with  selling  liquors  at 
any  place  other  than  his  barroom. 

State  v.  Ragghianti,  129  Tenn.  (2  Thompson)  560,  167 
S.  W.  689. 

Dismissal. — In  contempt  proceedings  for  violation  of 
two  injunctions  against  the  sale,  etc.,  of  intoxicants,  where 
the  court  sustained  the  motion  to  strike  the  first  count  of 
the  information  setting  out  the  first  injunction,  and  the 
other  injunction  was  void  and  not  sufficient  to  cover  the 
acts  charged,  the  entire  case  must  be  dismissed. 

State  v.  District  Court,  176  la.  178,  157  N.  W.  737. 

Evidence — Grand  Jury  Minutes. — Where  the  defend- 
ant was  enjoined  from  selling,  or  keeping  for  sale,  intoxi- 
cating liquor  contrary  to  law  and  was  later  indicted  by  the 
grand  jury  for  keeping  a  liquor  nuisance  for  a  period,  seven 
months  of  which  antedated  the  injunctional  decree,  on  an 
information  for  contempt  of  the  injunctional  decree,  the 
minutes  of  the  testimony  taken  before  the  grand  jury  could 
be  considered  in  order  to  fix  the  time  of  the  contempt  when 
it  was  claimed  offense  was  committed  to  which  the  defend- 
ant had  pleaded  guilty. 

Orr  v.  Cornell  (la.),  156  N.  W.  296. 

Kind  of  Beverage. — In  a  prosecution  for  contempt  by 
violation  of  injunction  against  illegal  sale  of  intoxicating 
liquors,  evidence  that  a  beverage  called  "malta,"  and  sold 
by  defendant  contained  a  very  small  percentage  of  alcohol, 
is  immaterial,  since  under  the  statute  it  is  "intoxicating 
liquor"  if  it  contains  any  alcohol. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 


TITLE  II— SEC.  24  OF  ACT  199 

Sufficiency  of  Showing  of  Contempt.— On  informa- 
tion for  contempt  of  an  injunction  decree  against  selling 
and  keeping  for  sale  intoxicating  liquors  contrary  to  law, 
an  indictment  by  the  grand  jury  for  keeping  a  liquor  nui- 
sance for  a  period,  seven  months  of  which  antedated  the 
decree,  would  not  alone  be  sufficient  to  justify  a  commit- 
ment for  contempt  of  court  for  violating  the  decree. 

Orr  v.  Cornett  (la.),  156  N.  W.  296. 

Where  a  druggist  was  enjoined  from  illegally  selling  in- 
toxicating liquors,  and  his  place  of  business  was  described 
in  the  injunction,  and  the  druggist  sold  his  business,  but  re- 
mained as  a  clerk,  a  personal  selling  of  intoxicant  is  a  vio- 
lation of  the  injunction,  rendering  him  liable  for  contempt. 

Rust  v.  District  Court,  162  la.  244,  143  N.  W.  1086. 
State  v.  Kurent  (Kan.),  184  Pac.  721. 

Liability   of  Husband   of   Owner  of  Premises. — In 

prosecution  for  contempt  by  violating  injunction  against 
illegal  sale  of  liquors,  the  husband  of  the  owner  of  the 
premises,  indicted  with  her,  who  merely  assisted  in  install- 
ing apparatus  for  vending  soft  drinks,  but  who  further  re- 
sisted raiding  officers  and  denied  them  entrance,  is  in  no 
essentially  different  position  than  had  he  himself  secured 
the  intoxicating  liquors  and  was  keeping  them  with  intent 
to  sell  them. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 

Liability  of  Servant. — A  servant  is  not  presumed  to 
know  of  an  injunction  which  affects  his  master's  title  in  and 
to  his  master's  property  or  which  affects  his  master's  right 
to  the  use  and  occupancy  of  his  property  for  the  sale  of  liq- 
uor so  as  to  be  liable  for  a  violation  of  the  injunction. 

Harris  v.  Hutchison,  160  la.  149,  140  N.  W.  830,  44  L. 
R.  A.,  N.  S.,  1035. 

Servant  Not  a  Party  to  Suit.— One  not  a  party  to  a 
suit  resulting  in  an  injunction  restraining  third  person  from 
maintaining  a  liquor  nuisance  on  premises  and  perpetually 
restraining  the  use  of  the  premises  for  the  traffic  in  intoxi- 
cating liquors,  and  without  knowledge  of  its  issuance,  is  not 


200  TITLE  II— SEC.  24  OF  ACT 

guilty  of  contempt  for  a  violation  of  the  injunction  for  sell- 
ing liquor  on  the  premises  as  a  servant  of  the  third  person. 

Harris  v.  Hutchison,  160  la.  149,  140  N.  W.  830,  44  L. 
R.  A.,  N.  S.,  1035. 

Same  Acts  as  Contempt  and  Subject  of  Criminal 
Prosecution. — In  a  contempt  proceeding  for  the  violation 
of  a  decree  enjoining  the  sale  of  intoxicating  liquors  and 
the  maintenance  of  a  nuisance  at  a  certain  place,  the  de- 
fendant may  be  punished  for  sales  of  liquor  and  for  acts 
done  in  maintaining  a  nuisance,  although  a  criminal  pros- 
ecution is  pending  against  him  for  the  same  sales  and  acts. 
State  v.  Kurent  (Kan.),  184  Pac.  721. 

Defenses. — Where  one  accused  of  violating  injunction 
restraining  illegal  sale  of  liquors  had  previously  been  en- 
joined under  a  permanent  writ,  his  interposing  to  a  charge 
of  contempt  the  fact  that  the  injunction  should  not  have 
been  granted,  is  a  purely  collateral  attack  upon  the  injunc- 
tion and  of  no  avail. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 

Appeal  or  Certiorari. — In  contempt  proceedings  for 
violation  of  an  injunction  pendente  lite  against  a  liquor 
nuisance,  issued  ex  parte  on  an  allegation  in  the  complaint, 
on  which  issue  has  not  been  joined,  that  defendant  was  the 
owner  or  manager  of  the  place,  the  order  for  injunction 
cannot  be  taken  on  certiorari,  as  adjudication  of  the  fact 
alleged. 

State  v.  District  Court,  54  Mont.  580,  172  Pac.  539. 


TITLE  II— SEC.  25 

Unlawful    Possession— Search  and    Seizure — Warrants- 
Property  Subject  to  Seizure— "Private  Dwelling." 

SEC.  25.  It  shall  be  unlawful  to  have  or  possess  any 
liquor  or  property  designed  for  the  manufacture  of  liq- 
uor intended  for  use  in  violating  this  title  or  which  has 
been  so  used,  and  no  property  rights  shall  exist  in  any 
such  liquor  or  property.  A  search  warrant  may  issue 
as  provided  in  Title  XI  of  public  law  numbered  24  of 
the  Sixty-fifth  Congress,  approved  June  15,  1917,  and 
such  liquor,  the  containers  thereof,  and  such  property 
so  seized  shall  be  subject  to  such  disposition  as  the 
court  may  make  thereof.  If  it  is  found  that  such  liq- 
uor or  property  was  so  unlawfully  held  or  possessed, 
or  had  been  so  unlawfully  used,  the  liquor  and  all  prop- 
erty designed  for  the  unlawful  manufacture  of  liquor 
shall  be  destroyed  unless  the  court  shall  otherwise  or- 
der. No  search  warrant  shall  issue  to  search  any  pri- 
vate dwelling  occupied  as  such  unless  it  is  being  used 
for  the  unlawful  sale  of  intoxicating  liquor,  or  unless  it 
is  in  part  used  for  some  business  purpose  such  as  a 
store,  shop,  saloon,  restaurant,  hotel,  or  boarding  house. 
The  term  " private  dwelling"  shall  be  construed  to  in- 
clude the  room  or  rooms  used  and  occupied  not  tran- 
siently but  solely  as  a  residence  in  an  apartment  house, 
hotel,  or  boarding  house.  The  property  seized  on  any 
such  warrant  shall  not  be  taken  from  the  officer  seizing 
the  same  on  any  writ  of  replevin  or  other  like  process. 

Ex  Post  Facto  Legislation.— A  statute  making  it  un- 
lawful to  have  possession  of  intoxicating  liquors  for  sale 
in  force  from  and  after  April  1,  1913,  and  ratified  March 
3,  1913,  is  not  objection  as  ex  post  facto  when  applied  to 


202  TITLE  II— SEC.  25  OF  ACT 

the  findings  of  liquor  in  the  possession  of  accused  April  17, 
1913,  in  the  absence  of  anything  to  show  that  the  liquor 
was  acquired  prior  to  the  ratification  of  the  act. 
State  v.  Denton,  164  N.  C.  530,  80  S.  E.  401. 

Intent. — "The  old  rule  that  criminal  intent  must  accom- 
pany a  crime  is  still  the  law,  even  as  to  liquors,  so  far  as 
we  have  been  able  to  ascertain.  There  must  be  actual  or 
constructive  intent  to  do  the  thing  which  constitutes  the 
crime;  otherwise  there  is  no  criminal  act.  If  it  can  be  said 
that  the  liquor  in  this  case  was  in  the  possession  of  the  de- 
fendant merely  because  it  was  in  his  shop,  when  he  did  not 
know  it,  stilj  such  possession,  not  being  conscious,  was  not 
actual  and  intentional  possession,  as  contemplated  by  the 
statute." 

Jackson  v.  Gordon  (Miss.),  80  So.  785. 

The  chief  element  in  the  offense  of  storing  alcoholic  liq- 
uors is  the  unlawfulness  of  the  storing  the  intent  of  him 
who  has  the  liquor. 

State  v.  Tooley,  107  S.  C.  408,  93  S.  E.  132. 

Presumptions  and  Inferences  of  Law. — The  pre- 
sumption raised  by  statute  that  intoxicants  found  in  one's 
possession  are  held  by  him  for  an  illegal  purpose,  applies 
to  hotel  keeper  who  kept  liquors  in  his  private  room  in 
hotel ;  exceptions  as  to  private  dwelling  house  contained  in 
such  section  not  applying. 

State  v.  Marquardt  (la.),  169  N.  W.  338. 

In  a  prosecution  for  storing  alcoholic  liquors,  the  court 
may  not  infer  as  matter  of  law  that  the  discovery  of  a  very 
small  quantity  of  liquor  in  defendant's  safe  on  three  sep- 
arate occasions  within  a  period  of  six  months  did  not 
amount  to  storing. 

State  v.  Tooley,  107  S.  C.  408,  93  S.  E.  132. 

Ownership  of  Premises. — Under  a  statute  providing 
that  the  keeping  of  prohibited  liquors  or  beverages  in  a 
building  not  used  exclusively  for  a  dwelling  shall  be  prima 
facie  evidence  that  they  are  kept  for  sale  etc.,  it  is  not  es- 
sential in  order  to  raise  the  statutory  presumption  to  prove, 


TITLE  II— SEC.  25  OF  ACT  203 

in  prosecution  for  violation  of  the  prohibition  law,  that  the 
accused  owned,  or  even  had  legal  possession  of,  the  build- 
ing in  which  liquors  were  kept. 

Stout  t-.  State,  15  Ala.  App.  206,  72  So.  762. 

There  is  a  presumption  against  any  one  whose  property  is 
found  employed  in  violation  of  liquor  laws  that  such  prop- 
erty was  engaged  with  owner's  knowledge. 

State  v.  Southern  Exp.  Co.  (Ala.),  75  So.  343. 

Quantity  Immaterial. — If  defendant's  act  in  storing 
liquors  be  unlawful,  a  court  will  not  measure  with  nicety 
the  quantity  defendant  had  in  his  safe. 

State  v.  Tooley,  107  S.  C.  408,  93  S.  E.  132. 

Possession — What  Constitutes. — Where  defendant 
gave  a  public  drayman  a  check  for  a  trunk  and  instructed 
him  to  get  it,  and  take  it  to  a  certain  place,  and  paid  him 
therefor,  and  it  was  seized  while  in  the  drayman's  posses- 
sion and  found  to  contain  more  than  one  gallon  of 
whisky  there  was  such  a  possession  by  defendant  as  to  make 
out  a  prima  facie  case  against  him. 

State  v.  Lee,  164  iN.  C.  533,  80  S.  E.  405. 

Where  a  statute  makes  it  unlawful  for  any  person,  other 
than  licensed  druggists  and  medical  depositories,  to  have 
in  possession  for  purposes  of  sale  any  liquors,  and  makes 
the  having  in  possession  of  more  than  one  gallon  at  a  time 
prima  facie  evidence  of  violation  of  the  section,  and  three 
barrels,  each  containing  40  pint  bottles  of  whisky,  con- 
cealed with  potatoes,  addressed  to  defendant,  were  seized 
while  in  the  care  and  custody  of  the  railroad  carrying  them 
to  him  by  his  consent  and  procurement,  it  was  held  that  he 
was  in  "possession"  of  such  whisky  within  the  statute. 

State  v.  Blauntic,  170  N.  C.  749,  87  S.  E.  101. 

Possession  by  Agent. — Under  statute  of  possession  of 
liquor  by  defendant's  agent  is  a  possession  by  defendant. 

Hoskins  v.  Commonwealth,   171   Ky.  204.   188  S.  \V. 
348. 


204  TITLE  II— SEC.  25  OF  ACT 

Where  defendant  receipted  for  whisky,  and  directed  the 
express  agent  how  to  dispose  of  it,  the  expressman  became 
his  agent,  so  that,  for  the  purpose  of  a  prosecution  for 
having  possession  of  whisky  for  sale  in  local  option  terri- 
tory, the  whisky  came  into  defendant's  possession. 

Combs  v.  Commonwealth,  162  Ky.  86,  172  S.  W.  101. 

"In  Own  Home." — In  a  statute  providing  that  nothing 
in  the  act  shall  prevent  one  "in  his  own  home"  from  hav- 
ing and  giving  to  another  ardent  spirits,  the  words  "at  his 
home,"  mean  anywhere  within  the  curtilage,  the  cluster  of 
dwelling  houses  used  by  the  family  as  a  habitation,  as  de^ 
fined  from  time  immemorial,  and  the  words  "in  his  own 
home,"  "in  his  home,"  and  "permanent  residence  of  the 
person  and  his  family,"  have  substantially  the  same  mean- 
ing. 

Bare  v.  Commonwealth,  122  Va.  783,  94  S.  E.  168,  169. 

Locked  Boom  in  Public  Building. — The  keeping  of 
liquor  in  a  room  on  the  first  floor  of  a  building  used  as  a 
public  resort,  surrounded  by  rooms  open  to  the  public,  is 
prohibited  by  a  statute  making  it  unlawful  to  keep  any 
liquor  in  any  room,  building,  or  structure  other  than  a  pri- 
vate residence,  not  used  as  a  place  of  public  resort,  though 
the  room  in  question  was  locked. 

People  v.  Wheeler,  185  Mich.  164,  151  N.  W.  710. 

Mere  Possession  Not  Illegal  unless  So  Declared.— 

Under  a  statute  providing  that  after  November  1,  1916,  it 
shall  be  unlawful  for  any  person  to  manufacture,  trans- 
port, sell,  keep,  or  store  for  sale  more  than  a  gallon  of  in- 
toxicating liquor,  the  mere  keeping  of  liquor  is  not  illegal, 
but  to  constitute  the  offense  it  must  be  kept  for  sale. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652,  654. 

Mere  Possession  at  Private  Residence  Not  Unlaw- 
ful.— Under  a  statute  which  in  Sec.  1  provides  that  it  shall 
be  unlawful  for  any  person  to  sell,  keep  for  sale,  give 
away,  or  furnish  any  intoxicating  liquors,  etc.,  or  to  keep 
any  place  where  such  liquors  are  sold,  stored  for  sale,  given 
away,  or  furnished,  and  Sec.  38  thereof,  providing  that 


TITLE  II— SEC.  25  OF  ACT  205 

the  keeping  or  having  in  any  house  or  building,  except  a 
private  residence  occupied  as  such,  of  any  intoxicating  liq- 
uors, for  the  purpose  of  selling,  giving  away,  or  furnishing 
to  those  frequenting  the  place,  or  others,  shall  be  held  to 
be  the  keeping  of  a  place  where  intoxicating  liquors  are 
sold,  furnished,  or  given  away,  it  is  held,  that  section  38 
does  not  make  it  impossible  to  commit  the  offense  of  keep- 
ing a  place  where  intoxicating  liquors  are  stored,  given 
away,  and  furnished  in  a  private  residence,  since  the  two 
sections  should  be  read  together,  and,  when  so  read,  if  the 
offense  is  shown  to  have  been  in  a  private  residence,  some- 
thing more  must  be  shown  than  the  keeping  or  having  any 
of  the  liquors  mentioned  in  section  1. 

People  v.  Lester,  195  Mich.  477,  162  N.  W.  72. 

"Keeping"  Construed. — Liquor  Law,  rendering  ille- 
gal the  "keeping"  of  intoxicants,  uses  the  word  "keeping" 
as  synonymous  with  having  in  possession,  being  in  control, 
though  the  term  as  sometimes  used  implies  a  continued 
possession. 

Balfe  v.  People  (Colo.),  179  Pac.  137. 

"Place  of  Business"  Construed. — A  place  of  business 
within  the  prohibition  law,  is  a  jpublic  place  of  business, 
not  in  the  sense  that  it  belongs  to  the  public  nor  that  there  is 
any  great  degree  of  publicity,  but  that  it  must  be  a  place  to 
which  the  public  is  invited  either  expressly  or  t>y  implication 
to  transact  business ;  and  by  "public"  is  meant  that  the  pub- 
lic is  invited  to  come  to  it  and  has  access  to  it  for  a  purpose 
within  the  scope  of  the  business  that  is  carried  'on. 

Brocks  v.  State,  19  Ga.  App.  3,  90  S.  E.  989. 

"Presumptively,  a  'pressing  club,'  where  clothes  are 
pressed  for  a  monetary  consideration,  is  a  'place  of  busi- 
ness,' where  the  public  are  invited,  at  least  impliedly,  to  come 
and  transact  business  with  the  owner  or  manager,  and  ac- 
cordingly it  is  such  a  public  place  of  business  as  is  con- 
templated in  the  statute,  which  forbids  the  keeping  on  hand 
at  one's  place  of  business  intoxicating  liquors.  Roberts  v. 
State,  4  Ga.  App.  207,  60  S.  E.  1082 ;  Jenkins  v.  State,  4 


206  TITLE  II— SEC.  25  OF  ACT 

Ga.  App.  859,  62  S.  E.  574;  Land  v.  State,  5  Ga.  App.  98, 
62  S.  E.  665." 

Jones  v.  State,  17  Ga.  App.  118,  86  S.  E.  284. 

Pool  Room  as  Public  Place. — "A  poolroom  frequented 
and  used  by  the  public  is  a  'public  place,'  within  the  mean- 
ing of  the  prohibition  statute.  The  phrase  'public  place,' 
as  used  in  the  prohibition  law,  by  a  broad,  general,  and  not 
wholly  exhaustive  definition,  includes  any  place  which,  from 
its  public  character,  members  of  the  general  public  frequent, 
or  where  they  may  be  expected  to  congregate  at  any  time  as 
a  matter  of  common  right;  also  any  place  at  which,  even 
though  it  is  privately  owned  or  controlled,  a  number  of  per- 
sons have  assembled,  through  common  usage  or  by  general 
or  indiscriminate  invitation,  express  or  implied.  Tooke  v. 
State,  4  Ga.  App.  495,  61  S.  E.  917,  918." 

Griffin  <y.  State,  15  Ga.  App.  552,  83  S.  E.  871. 

Under  Interstate  Commerce  Clause  of  Constitution. 

— The  possession  of  two  quarts  of  whisky  by  an  interstate 
passenger  carried  for  his  private  use,  and  not  in  excess  of 
what  is  reasonably  necessary  for  his  personal  use  and  com- 
fort while  on  the  journey,  is  protected  by  the  commerce 
clause  of  the  Constitution  as  possession  of  personal  bag- 
gage. 

Howard  v.  State  (Ala.  App.),  73  So.  559. 

Possession  upon  the  Street. — The  Nevada  Prohibi- 
tion Act,  §  7,  was  intended  to  prevent  a  person  from  hav- 
ing intoxicating  liquor  upon  the  street  for  personal  or  any 
other  use  other  than  contemplated  by  the  act  itself. 

Ex  parte  Zwissig  (Nev.),  178  Pac.  20. 

Action  for  Undisclosed  Principal  as  Defense. — One 

found  in  possession  of  intoxicating  liquors,  which  may  be 
imported  only  for  personal  use,  and  shown  to  have  made 
affidavit  that  the  same  were  for  his  own  use,  cannot  make 
a  good  defense  on  the  ground  he  was  acting  for  an  undis- 
closed principal. 

Balfe  v.  People   (Colo.),  179  Pac.   137. 


TITLE  II— SEC.  25  OF  ACT  207 

Common  Carriers. — An  act  which  declares  that:  "It 
shall  be  unlawful  for  any  corporation,  firm,  person  or  in- 
dividual to  *  *  *  have,  control  or  possess,  in  this  state, 
any  of  said  enumerated  liquors  or  beverages  whether  in- 
tended for  personal  use  or  otherwise,  save  as  is  hereinafter 
excepted,"  by  its  plain  terms  makes  it  unlawful  for  any 
corporation  to  have,  control,  or  possess,  in  this  state,  any 
of  the  liquors  mentioned.  There  is  no  exception  in  behalf 
of  common  carriers.  The  express  mention  of  common  car- 
riers in  another  part  of  the  same  section  and  elsewhere  in 
the  act  does  not  show  that  it  was  the  intention  of  the  Gen- 
eral Assembly  to  except  common  carriers  from  the  provi- 
sions of  this  law,  but  the  act  clearly  indicates  that  it  was 
the  intention  of  the  Legislature  to  prohibit  intoxicating 
liquors,  except  in  specified  case,  from  being  transported 
into  or  within,  or  possessed  or  controlled  in  this  state  by 
any  person  whatsoever,  natural  or  artificial.  This  intent 
is  made  clear  by  the  fact  that  the  act  names  every  con- 
ceivable one  who  could  transport  or  possess  or  control 
intoxicating  liquors.  The  defendant  company  is  a  corpora- 
tion, and  consequently  is  included  under  the  plain  terms 
of  the  act. 

Seaboard  Air  Line  Railway  v.  State   (Ga.  App.),  97 
S.  E.  549. 

Liquor  Acquired  before  Law  Passed. — A  statute 
making  it  unlawful  to  have  possession  of  over  a  certain 
amount  of  intoxicating  liquor,  does  not  render  unlawful 
liquor  acquired  prior  to  the  act's  effective  date,  and  held 
only  for  personal  use. 

State  v.  Eden,  92  Wash.  1,  158  Pac.  967,  159  Pac.  700. 

Search  Warrant  Provision. 

Against  Druggest. 

See  ante,  under  Sec.  8. 

Construction  of  Statutes.— The  particular  statutes  un- 
der consideration,  in  reference  to  search  warrants,  should 
receive  a  broader  and  more  liberal  construction  than  the 
general  statutes  in  reference  to  common-law  search  war- 
rants, and  it  is  not  necessary  in  the  complaint  or  warrant  to 


208  TITLE  II— SEC.  25  OF  ACT 

describe  the  liquor  or  property  to  be  searched  for  nor  the 
premises  to  be  searched,  with  that  degree  of  common-law 
search  warrants. 

Milwaukee  Beer  Co.  v.  State,  55  Okla.  181,  155  Pac. 
200. 

A  statute  authorizing  searches  and  seizures  confers  ex- 
traordinary and  harsh  remedies  and  must  be  strictly  com- 
plied with,  and  a  search  warrant  can  lawfully  issue  only 
in  the  cases  and  with  the  formalities  prescribed  by  the 
statute. 

In  re  State,  179  Ala.  639,  60  So.  285. 

A  warrant  issued  by  a  justice  of  the  peace,  commanding 
search  of  a  certain  passenger  train  to  see  if  intoxicating 
liquors  are  being  carried  thereon  contrary  to  law,  is  not 
authorized  by  Barnes'  West  Va.  Code  1918,  c.  32a,  §  9 
(Code  ,1913,  c.  32A,  §  9  [sec.  1288]),  and  is  void. 

Clark  v.  Norfolk,  etc.,  R.  Co.  (W.  Va.),  100  S.  E.  480. 

Constitutionality. — The  North  Car.  Laws  1913  c.  44, 
relating  to  the  illegal  sale  of  intoxicating  liquors  and  known 
as  the  search  and  seizure  law,  is  constitutional. 

State  v.  Cathey,  170  N.  C.  794,  87  S.  E.  532. 

The  Alabama  Act  providing  for  the  suppression  of  the 
evils  of  intemperance  and  especially  section  22  subd.  6, 
par.  "a"  (page  76)  providing  for  searches  and  seizure  of 
intoxicating  liquors  wrongfully  kept  for  sale,  is  not  un- 
constitutional. 

Jones  v.  State,  4  Ala.  App.  159,  58  So.  1011. 

The  provision  in  the  statute  that  any  place  suspected  of 
being  a  blind  tiger  shall  be  searched  by  an  officer  desig- 
nated in  a  search  warrant,  issued  on  an  affidavit  that  the 
affiant  believes  the  place  to  be  a  blind  tiger  and  no  such  ad- 
ditional evidence  as  the  court  may  require  to  make  out  a 
prima  facie  case  and  that  if  any  intoxicating  liquor  found 
therein  shall  be  seized  by  the  officer  and  brought  before  the 
court  along  with  all  persons  found  in  the  place,  is  not  vio- 
lative  of  the  constitutional  guaranty  against  unreasonable 


TITLE  II— SEC.  25  OF  ACT  209 

search  and  seizure  and  the  issuance  of  a  warrant  without 
probable  cause  supported  by  oath  or  affirmation. 

State  v.  Doremus,  137  La.  266,  68  So.  605. 

Nature  of  Proceeding  as  in  Rem.— A  proceeding 
originating  in  a  search  warrant  under  the  act  relating  to 
the  suppression  of  intemperance,  conducted  in  the  name  of 
the  state  for  the  condemnation  of  beer  and  in  which  a 
claimant  asserts  interest  is  no  criminal  prosecution  but  a 
proceeding  in  rem,  which,  upon  reasonable,  or  general  no- 
tice, determines  the  status  of  the  property  as  to  the  whole 
world. 

Toole  v.  State,  170  Ala.  41,  54  So.  195. 

Search  without  Warrant. — "That  the  circumstances 
were  such  as  to  cause  an  ordinarily  prudent  officer,  in  the 
exercise  of  his  duties,  to  believe  that  plaintiff  had  intoxicat- 
ing liquor  in  his  suit  case  for  unlawful  purposes,  did  not 
justify  the  officer  in  making  a  search  of  the  suit  case  and 
using  the  force  reasonably  necessary  for  that  purpose, 
since ;  while  the  statute  authorizes  an  officer  to  seize  in- 
toxicating liquors  illegally  kept  without  a  warrant,  no 
search  without  a  warrant  is  authorized." 

Caffini  v.  Hermann,  112  Me.  282,  91  Atl.  1009. 

Sufficiency  of  Charge  of  Offense. — An  amended 
search  warrant,  charging  that  defendant,  on  whose  premises 
a  quantity  of  intoxicating  liquors  was  found  after  search, 
had  committed  the  offense  of  having  in  his  possession  in- 
toxicating liquors  for  the  purpose  of  sale  in  a  local  option 
county,  is  almost,  if  not  quite,  as  specific  as  would  be  re- 
quired for  an  indictment,  and  is  sufficient  since  such  war- 
rant need  not  charge  the  offense  with  the  technical  accu- 
racy required  in  an  indictment. 

Frey  v.  Commonwealth,  169  Ky.  528,  184  S.  W.  896. 

But  a  complaint  in  a  proceeding  under  a  statute,  to 
search  for  and  seize  intoxicating  liquors,  describing  the 
place  as  "a  certain  shop  and  dwelling  and  its  appurtenance," 
occupied  by  defendant  as  a  store  and  dwelling  is  insuffi- 
cient for  failing  to  charge  that  the  dwelling  house,  or  any 


210  TITLE  II— SEC.  25  of  ACT 

part  of  it,  is  used  as  an  inn  or  shop,  or  for  purposes  of 
traffic,  within  the  statute. 

State  v.  Soucie,  109  Me.  251,  83  Atl.  700. 

In  search  and  seizure  proceeding  under  Alabama  Act, 
(Aug.  25,  1909,  Gen.  &  Loc.  Laws  Sp.  Sess.  1909,  p.  74), 
on  motion  an  affidavit  was  properly  overruled,  where  the 
affidavit  stated  that  defendant  kept  a  place  where  spirituous, 
vinous,  or  malt  liquor  or  beverages  were  kept  for  sale  or 
otherwise  illegally  disposed  of,  known  as  the  Olympian 
Hotel. 

Cheek  v.  State,  3  Ala.  App.  646,  57  So.  108. 

Insufficiency   of  Affidavit  Makes   Warrant   Void.— 

Where  a  search  warrant  issued  to  discover  liquors  was 
based  on  a  wholly  insufficient  affidavit,  which  failed  to  show 
that  there  was  probable  cause  to  believe  that  the  liquors 
were  illegally  kept  as  required  by  statute,  the  warrant  was 
void,  and  the  proceeding  could  not  be  sustained  by  an 
amendment  filed  after  the  warrant  had  been  executed  and 
the  liquor  seized. 

Coleman  v.  State,  7  Ala.  App.  424,  61  So.  20. 

Description  of  Premises  and  Property. — A  search 
warrant  describing  the  property  to  be  seized  as  the  fol- 
lowing contraband  intoxicating  liquors  now  unlawfully  in 
the  possession,  storage,  and  keeping  of  and  on  the  premises 
occupied  by  S.,  the  said  place  being  known  as  No.  1216  G. 
Street  in  the  city  of  C.,  to  wit  a  lot  of  whisky,  brandy, 
wine,  rum,  gin,  and  beer  in  barrels,  demijohns,  bottles,  and 
other  vessels,  sufficiently  described  the  premises  and  prop- 
erty. 

Farmer  v.  Sellers,  89  S.  C.  492,  72  S.  E.  224. 

Fictitious  Name. — Under  a  statute  which  requires  a 
complaint,  in  a  proceeding  to  search  for  and  seize  intoxi- 
cating liquors  unlawfully  kept,  to  state  the  name  of  the 
keeper,  or  that  it  is  unknown,  a  complaint,  stating  the 
keeper's  name  fictitiously  as  "John  Doe,"  without  stating 
that  his  real  name  is  unknown,  is  void. 

State  v.    Intoxicating  Liquors,    110  Me.   260,   85   Atl. 
1060. 


TITLE  II— SEC.  25  OF  ACT  211 

Affidavit  of  Probable  Cause— What  Must  Be 
Stated. — Under  state  law  providing  for  issuance  of 
search  warrant  on  affidavit  of  probable  cause  to  believe  that 
intoxicating  liquors  are  being  sold  unlawfully,  probable 
cause  need  only  be  sufficient  to  create  the  belief  in  the  mind 
of  the  judge  that  liquor  is  being  sold  contrary  to  law,  and 
there  is  no  requirement  that  the  cause  be  stated  in  the  com- 
plaint; the  ascertainment  of  probable  cause  being  a  judicial 
function. 

State  v.  Gordon   (Wash.),  163  Pac.  772. 

The  Alabama  Act  authorizes  search  and  seizure  for 
liquors  on  a  warrant  to  be  issued  when  any  person,  firm 
or  association,  etc.,  keeps  a  place  where  prohibited  liquors 
and  beverages  are  manufactured,  sold,  kept  for  sale,  or 
otherwise  disposed  of  contrary  to  law,  or  when  such  liq- 
uors are  stored  for  sale  delivery,  or  distribution  contrary 
to  law,  or  for  other  illegal  purpose  in  any  warehouse  or 
other  place,  when  such  prohibited  liquors  are  in  the  pos- 
session of  any  person,  firm,  or  association  conducting  on 
the  premises  an  unlawful  drinking  place  or  maintaining 
liquor  nuisance,  or  when  any  persons,  firm,  or  association 
is  carrying  on  at  the  place  the  business  of  a  retail  or  whole- 
sale dealer  in  liquors,  and  such  liquors  are  kept  for  sale  by 
such  dealer.  Held,  that  such  warrants  were  only  issuable 
on  a  showing  of  probable  cause  by  an  affidavit  naming  or 
describing  the  person  or  party  whose  premises  are  to  be 
searched,  if  known,  etc.,  together  with  probable  cause 
shown  for  believing  that  one  or  more  of  the  specified 
grounds  for  issuing  the  process  exists  and  hence  an  affi- 
davit, merely  alleging  that  the  affiants  had  cause  to  believe, 
and  did  believe  that  malt  liquors  were  stored  in  a  building 
owned  by  C.  then  occupied  by  certain  others  and  known  as 
the  "Old  Tillery  Shop,"  in  L.  County,  or  in  a  nearby  res- 
taurant operated  by  J.  in  such  county,  was  insufficient  to 
support  the  writ. 

Coleman  v.  State,  7  Ala.  App.  424,  6  So.  20. 

Time  for  Execution. — A  search  warrant  cannot  legally 
be  enforced  so  long  after  its  issuance  that  the  search  could 
not  be  reasonably  considered  a  bona  fide  effort  to  recover 
the  property  described,  though  there  is  no  absolute  time 


212  TITLE  II— SEC.  25  OF  ACT 

fixed  by  law  enforcing  the  warrant.  The  time  of  execut- 
ing a  search  warrant  depends  upon  the  character  of  the  per- 
son charged  with  having  the  stolen  or  contraband  goods,  the 
nature  of  the  crime  charged,  etc.,  there  being  no  absolute 
time  fixed  by  law  for  its  execution. 

Farmer  v.  Sellers,  89  S.  C.  492,  72  S.  E.  224. 

Arrest  on  Void  Search  Warrant  Illegal. — "An  arrest 
made  on  a  void  search  warrant  is  illegal,  and  a  conviction 
of  the  person  arrested  thereon  in  a  justice's  court  is  illegal 
and  void." 

Emsweller  v.  Wallace,  78  W.  Va.  214,  88  S.  E.  787. 

"Place"  That  Can  Be  Searched.—  West  Va.  Statute 
(Code  1913,  §  1288)  authorizing  a  warrant  for  the  search 
of  any  house,  building,  or  other  place  in  which  it  is  charged 
the  manufacture,  sale,  offering,  keeping,  or  storing  for  sale 
or  barter  of  liquor  contrary  to  law  is  carried  on,  and  for  sei- 
zure of  fixtures  and  arrest  of  persons  found  therein,  con- 
templates a  house,  building,  boat,  or  place  which  persons 
may  be  and  performing  the  forbidden  acts,  and  a  suitcase, 
trunk,  or  other  small  container  of  liquors  or  packages  of 
liquors,  is  not  such  a  "place." 

Emsweller  v.  Wallace,  78  W.  Va.  214,  88  S.  E.  787. 

Liability  for  Action  under  Invalid  Warrant. — De- 
fendants, who  voluntarily  participated  in  a  raid  upon  plain- 
tiff's hotel  and  assisted  rangers  in  forcibly  breaking  and  en- 
tering his  storeroom,  and  carrying  away  his  stock  of  liquors, 
knowing  the  invalidity  of  the  search  and  seizure  war- 
rant under  which  the  Rangers  purported  to  act,  and  that 
the  seizure  was  unlawful,  even,  though  commanded  or  re- 
quested to  do  so  by  such  Rangers,  were  liable  to  plaintiff 
in  damages. 

Cartwright  v.  Canode,  106  Tex.  502,  171  S.  W.  696. 

Failure  of  Officer  to  Sign  Return  to  Warrant. — In 

a  prosecution  for  criminally  keeping  for  sale  spirituous  and 
intoxicating  liquors,   failure  of   officer  to  sign  a   return  to 
a  search  warrant  did  not   render  it  improper  to  admit  in 
evidence  liquor  seized  under  the  search  warrant. 
State  v.  Agalos,  (N.  H.),  107  Atl.  314. 


TITLE  II— SEC.  26 

Seizure  in  Transportation — Confiscation  of  Conveyance — 
Destruction  of  Liquor — Sale  of  Otlher  Property Dis- 
position of  Proceeds. 

SEC.  26.    When  the  commissioner,  his  assistants,  in- 
spectors,   or  any  officer  of  the   law  shall  discover   any 
person    in  the  act  of    transporting  in  violation  of    the 
law,  intoxicating  liquors  in  any  wagon,  buggy,  automo- 
bile, water  or  air  craft,  or  other  vehicle,  it  shall  be  his 
duty   to  seize   any  and  all    intoxicating   liquors    found 
therein  being  transported  contrary  to  law.     Whenever 
intoxicating  liquors   transported   or  possessed  illegally 
shall  be  seized  by  an  officer  he  shall  take  possession  of 
the  vehicle  and  team  or  automobile,  boat,  air  or  water 
craft,    or  any  other   conveyance,  and    shall  arrest    any 
person    in  charge    thereof.     Such    officer  shall    at  once 
proceed    against  the    person  arrested    under  the    pro- 
visions   of  this    title  in    any    court   having    competent 
jurisdiction;  but  the    said  vehicle  or  conveyance  shall 
be  returned  to  the    owner  upon  execution  by   him  of  a 
good  and  valid  bond,  with  sufficient  sureties,  in  a  sum 
double  the  value  of  the  property,  which  said  bond  shall 
be  approved  by  said  officer  and  shall  be  conditioned  to 
return  said    property  to  the   custody  of  said  officer  on 
the   day  of  trial   to  abide   the   judgment   of  the   court. 
The    court  upon    conviction  of   the  person  so    arrested 
shall  order  the  liquor  destroyed,  and  unless  good  cause 
to  the   contrary  is  shown   by  the  owner,  shall    order  a 
keeping  the  property,  the  fee  for  the  seizure,  and  the 
officer  making  the  sale,  after  deducting  the  expenses  of 
keeping  the  property,  the  fee  for  the  seizure,  and  the 
cost  of  the   sale,  shall  pay  all  liens,    according  to  their 


214  TITLE  II— SEC.  26  OF  ACT 

priorities,  which  are  established,  by  intervention  or 
otherwise,  at  said  hearing  or  in  other  proceeding 
brought  for  said  purpose,  as  being  bona  fide  and  as 
having  been  created  without  the  lienor  having  any 
notice  that  the  carrying  vehicle  was  being  used  or  was 
to  be  used  for  illegal  transportation  of  liquor,  and  shall 
pay  the  balance  of  the  proceeds  into  the  Treasury  of 
the  United  States  as  miscellaneous  receipts.  All  liens 
against  property  sold  under  the  provisions  of  this  sec- 
tion shall  be  transferred  from  the  property  to  the  pro- 
ceeds of  the  sale  of  the  property.  If,  however,  no  one 
shall  be  found  claiming  the  team,  vehicle,  water  or  air 
craft,  or  automobile,  the  taking  of  the  same,  with  a  de- 
scription thereof,  shall  be  advertised  in  some  news- 
paper published  in  the  city  or  county  where  taken,  or 
if  there  be  no  newspaper  published  in  such  city  or 
county,  in  a  newspaper  having  circulation  in  the  county, 
once  a  week  for  two  weeks,  and  by  handbills  posted  in 
three  public  places  near  the  place  of  seizure,  and  if  no 
claimant  shall  appear  within  ten  days  after  the  last 
publication  of  the  advertisement,  the  property  shall  be 
sold  and  the  proceeds  after  deducting  the  expenses  and 
costs  shall  be  paid  into  the  Treasury  of  the  United 
States  as  miscellaneous  receipts. 

Constitutionality  of  Law  Imposing  Forfeiture. — "If 

the  state,  in  the  valid  exercise  of  the  police  power,  may  de- 
clare it  unlawful  and  illegal  for  any  person  to  transport, 
ship,  or  carry  whisky  by  any  means  whatsoever  from  any 
point  without  this  state  to  any  point  within  this  state,  and 
from  place  to  place  within  this  state,  it  necessarily  follows 
that  the  state  may,  in  the  exercise  of  its  police  power,  adopt 
any  means  reasonably  necessary,  and  not  unduly  oppres- 
sive upon  the  individual,  to  prevent  the  transportation  of 
such  whisky.  Crane  v.  Cambell,  245  U.  S.  304,  38  Sup.  Ct. 
98,  99,  62  L.  Ed.  304.  Such  liquors  cannot  reasonably  be 
brought  from  without  to  a  point  within  this  state,  nor 


TITLE  II— SEC.  26  OF  ACT  215 

carried  from  point  to  point  within  the  state  without  the  use 
of  some  vehicle  or  conveyance  of  some  kind  or  descrip- 
tion. The  power  to  prohibit  the  transportation  of  liquors 
is  conceded,  at  least  in  this  case;  and  it  would  seem  to  fol- 
low as  a  necessary  conclusion,  that  the  forfeiture  of  the 
vehicle  used  in  the  transportation  of  such  liquor  upon  the 
public  highways,  private  ways,  and  waters  of  this  state  is 
a  measure  reasonably  necessary  for  the  accomplishment  of 
the  purpose." 

Mack  v.  Westbrook,  148  Ga.  690,  98  S.  E.  339,  341. 
See  also,  Skinner  v.  Thomas,  171  N.  C.  98,  85  S.  E 
976,  L.  R.  A.  1916E,  338n. 

And  an  act  providing  that  sheriff  or  arresting  officer 
''who  becomes  cognizant  of  the  facts  or  who  finds  liquor 
in  such  conveyances  or  vehicle  being  illegally  transported" 
shall  seize  the  same,  is  not  in  violation  of  constitutional 
provision  as  to  unreasonable  seizure. 
Maples  v.  State  (Ala.),  82  So.  183. 

And  an  act  as  to  seizure  of  vehicles  used  for  transpor- 
tation of  liquor,  is  not  subject  to  the  objection  that  it  is 
unconstitutional,  in  that  no  detinue  writ  may  be  employed 
to  retake  possession  pending  forfeiture  suit,  and  that  this 
is  violative  of  the  Constitution,  which  guarantees  that 
courts  shall  always  be  open  and  every  person  shall  have  a 
remedy  by  due  process  of  law. 

Maples  v.  State  (Ala.),  82  So.  183. 

The  Prohibition  Act  of  Utah  confers  upon  the  courts  the 
power  to  declare  forfeited  to  the  state  all  automobiles  used 
for  the  illegal  transportation  of  intoxicating  liquors. 
State  v.  Jenson  (Utah),  184  Pac.  179. 

As  Denying  Jury  Trial. — A  law  providing  that  the 
court  having  jurisdiction  of  property  seized  as  having  been 
used  in  unlawful  transportation  of  intoxicating  liquors 
shall,  without  a  jury,  order  a  hearing  and  take  evidence  and 
determine  as  in  civil  cases,  does  not  violate  the  United 
States  Constitution  or  Const.  Okl.  art.  2,  §  19,  as  denying 
a  jury  trial. 

One   Cadillac  Automobile  v.   State   (Okla.),   182   Pac. 
227. 


216  TITLE  II— SEC.  26  OF  ACT 

Forfeiture  of  Vehicle  Used. — A  provision  making  it  a 
criminal  offense  to  import  distilled  spirits  punishable  by  fine 
or  imprisonment  or  both,  is  not  a  customs  law,  but  a  pro- 
hibition law  enacted  under  the  police  power  of  Congress, 
and  while  the  seizure  and  forfeiture  as  contraband  of  spir- 
its so  imported,  though  not  specifically  provided  for,  is  es- 
sential to  the  effective  enforcement  of  the  law,  the  court 
cannot  impose  as  an  additional  punishment  the  forfeiture 
of  the  vehicle  used,  under  another  statute. 

United  States  v.  One  Ford  Automobile   (D.  C.),  259 
Fed.  894. 

In  the  instant  case  a  prior  statute  provides  that  when 
goods  or  merchandise  are  brought  into  the  United  States  in 
violation  of  or  contrary  to  law,  not  only  the  goods  so 
brought  in,  but  the  vehicles  used  in  bringing  them  in,  shall 
be  condemned  and  forfeited.  But  prior  to  the  act  of  Aug. 
10,  1917,  the  bringing  of  distilled  spirits  into  the  United 
States  was  not  a  crime  unless  brought  in  without  payment 
of  duty.  But  the  Act  of  Aug.  10,  1917,  forbidding  their 
importation  or  bringing  in  under  any  circumstances  no  duty 
could  be  imposed  and  there  could  be  no  violation  of  that 
law  because  it  no  longer  applied,  therefore  the  court  holds 
that  the  only  applicable  law  is  that  of  Aug.  10,  1917,  and 
as  the  forfeiture  of  the  vehicle  in  which  brought  is  no  part 
of  the  penalty  imposed  by  that  act,  the  vehicle  could  not 
lawfully  be  confiscated. 

United  States  v.  One  Ford  Automobile   (D.  C.),  259 
Fed.  894. 

Right  to  Trial  by  Jury. — Proceedings  for  the  seizure 
and  condemnation  of  liquor  alleged  to  be  unlawfully  kept 
for  sale  are  not  prosecutions  for  criminal  offenses  within 
the  constitutional  provision  giving  a  right  to  trial  by  jury  in 
such  prosecutions,  but  are  civil  proceedings  in  rent  to  fix 
the  status  of  the  property. 

State  v.  Intoxicating  Liquor,  82  Vt.  287,  73  Atl.  586. 

In  a  proceeding  against  intoxicating  liquors  for  their  de- 
struction, jury  trial  may  be  denied  where  the  only  person 
appearing  as  defendant  admitted  that  he  claimed  the  liq- 


TITLE  II—  SEC.  26  OF  ACT  217 

uors  and  kept  them  for  purposes  clearly  in  violation  of  the 
statute. 

State_t/.  Certain  Intoxicating  Liquors  (Utah),  177  Pac. 


But  a  proceeding  to  forfeit,  under  U.  S.  Rev.  St.  §  2140 
(Comp.  St.  1916,  §  4141),  an  automobile  seized  on  land,  on 
the  ground  that  it  .was  used  as  a  means  for  the  introduc- 
tion of  intoxicating  liquor  into  the  Indian  country,  is  one 
at  law,  and  the  parties  are  entitled  to  the  usual  rights  and 
remedies  incident  to  such  an  action,  including  the  right  to 
trial  by  jury. 

Shawnee  Nat.  Bank  v.  United  States,  161  C.  C  A   509 
249  Fed.  583. 

Construction.—  It  is  a  principle  of  natural  law  and  jus- 
tice that  statutes  will  not  be  held  to  forfeit  property,  ex- 
cept for  the  fault  of  the  owner  or  his  agents,  unless  such  a 
construction  is  unavoidable. 

Shawnee  Nat.  Bank  v.  United  States,  161  C.  C.  A.  509 
249  Fed.  583. 

A  statute  imposing  a  forfeiture  should  be  strictly  con- 
strued and  in  a  manner  as  favorable  to  the  person  whose 
property  is  to  be  seized  as  is  consistent  with  the  fair  prin- 
ciples of  interpretation. 

United  States  v.  One  Cadillac  Eight  Automobile   (D. 
C.),  255  Fed.  173. 

Thus,  in  Act  March  2,  1917,  §  1  (U.  S.  Comp.  St.  1918, 
§  4141a),  providing  for  the  forfeiture  of  automobiles  or 
other  vehicles  used  in  introducing  liquor  into  the  Indian 
country,  "or  where  the  introduction  is  prohibited  by  treaty 
or  Federal  statute,"  the  phrase  quoted  must  be  limited  to 
treaties  or  statutes  relating  to  Indian  affairs,  to  which  the 
statute  solely  relates,  and  cannot  be  extended  to  apply  to 
vehicles  used  in  introducing  liquors  into  prohibition  states 
in  violation  of  Act  March  3,  1917,  §  5  (Comp.  St.  1918,  § 
8739a). 

United  States  v.  One  Buick  Automobile  (D.  C.),  255 
Fed.  793. 


218  TITLE  II— SEC.  26  OP  ACT 

And  in  ascertaining  the  legislative  intention   relative  to 

laws  prohibiting  the  manufacture  and  sale  of  intoxicating 

liquors,  and  forfeiting  property  used  in  such  traffic,  it  will 

be  considered  that  forfeitures  are  not  favored  in  the  law. 

State   v.   Jones-Hansen-Cadillac    Co.    (Neb.),    172   N. 

W.  36. 

And  a  law  prohibiting  the  manufacture  and  sale  of  in- 
toxicating liquors,  and  providing  for  the  confiscation  of 
property  used  in  the  traffic,  will  not  be  construed  to  forfeit 
the  property  of  innocent  citizens,  unless  a  legislative  intent 
is  manifest  that  such  forfeiture  is  necessary  for  the  pres- 
ervation of  the  public  health  and  safety. 

State   v.   Jones-Hansen-Cadillac   Co.    (Neb.),    127   N. 
W.  36. 

Under  Provision  Requiring  Liberal  Construction. — 

In  view  of  Comp.  Laws  of  Utah,  1917,  §  5839,  requiring 
the  provisions  of  the  Revised  Statutes  to  be  liberally  con- 
strued, and  the  Prohibition  Law,  §  1,  requiring  liberal  con- 
struction of  the  act,  under  Comp.  Laws  1917,  §  3359,  an 
automobile  used  in  the  illegal  transportation  of  liquor  into 
Utah  may  be  seized  and  forfeited  as  other  things  and  other 
property  may  be  forfeited  in  accordance  with  the  various 
provisions  of  the  Prohibition  Law,  the  rule  of  ejusdem 
generis  not  applying  in  the  construction  of  the  section. 
State  v.  Davis  (Utah),  184  Pac.  161. 

Law  Not  Retroactive. — An  automobile  used  prior  to 
the  enactment  of  the  law  authorizing  seizure  and  confisca- 
tion for  the  unlawful  transportation  of  intoxicating  liquors, 
is  not  subject  to  seizure  and  confiscation  therefor. 
First  Nat.  Bank  v.  State  (Okla.),  178  Pac.  670. 

Property  Liable  to  Forfeiture. — As  said  in  one  case: 
"It  seems  clear  and  plain  from  the  mere  reading  of  the  act 
that  the  kind  of  property  to  be  summarily  dealt  with  un- 
der sections  11  and  12  is  the  liquor  itself,  and  the  articles 
necessarily  and  customarily  used  in  connection  therewith 
for  the  sale  and  consumption  thereof,  such  as  the  contain- 
ers, glassware,  bar  furniture  and  fixtures,  and  the  like.  It 
is  equally  clear  that  boats  and  vehicles,  being  expressly 


TITLE  II— SEC.  26  OF  ACT  219 

named  in  section  5,  are  to  be  disposed  of  under  the  terms 
of  that  section,  and  not  otherwise.  It  may  be  that  a  boat 
is  an  implement,  within  the  ordinary  definition;  and,  were 
the  provisions  of  section  5  omitted  from  the  act,  we  might 
so  define  it.  But  we  cannot  believe  that  the  framers  of  the 
act,  after  having  provided  that  a  boat  or  vehicle  so  used 
shall  be  deemed  a  nuisance,  and  be  abated  as  such,  intended 
again  to  cover  the  same  subject  by  the  use  of  the  words 
'implements,  furniture  and  fixtures,'  as  used  in  sections  11 
and  12,  and  thus  to  provide  a  wholly  different  manner  for 
the  disposition  thereof,  inconsistent  with  the  previous  pro- 
visions already  incorporated  in  section  5.  This  court  ap- 
pears to  have  already  adopted  this  view.  Everett  v.  Mc- 
Culloch,  102  Wash.  51,  172  Pac.  863." 

Van   Bug  Fish  Co.   v.   Herstrom    (Wash.),   177  Pac. 
334,  335. 

Seizure  of  Money. — A  statute,  providing  that  it  shall 
be  the  duty  of  an  officer,  without  warrant,  to  arrest  the 
offender  and  seize  the  liquor,  bars,  furniture,  fixtures,  ves- 
sels, and  appurtenances  thereunto  belonging  so  unlawfully 
used  *  *  *  does  not  legally  authorize  such  officer  in 
making  such  seizure  to  seize  money. 

State  v.  Certain  Appurtenances  Used  in  Sale  of  In- 
toxicating Liquors.  46  Okla.  538,  149  Pac.  130. 

Automobiles. — A  statute  specifying  boats,  teams, 
wagons,  and  sleds,  impliedly  excludes  automobiles. 

Shawnee  Nat.  Bank  v.  United  States,  161  C.  C.  A.  509, 
249  Fed.  583,  584. 

"Prior  to  the  enactment  of  chapter  188  of  the  1917  Ses- 
sion Laws  of  the  state  of  Oklahoma,  there  was  no  legal  au- 
thority for  the  seizure  and  confiscation  of  an  automobile 
used  for  the  unlawful  transportation  of  intoxicating  liq- 
uors." 

State  Nat.  Bank  v.  State  (Okla.),  172  Pac.  1073. 

But  under  Nebraska  Laws  1917,  c.  187,  if  an  automobile 
used  in  the  unlawful  transportation  of  liquor  be  declared  a 
nuisance,  the  interest  of  the  owner  or  mortgagee  thereof, 


220  TITLE  II— SEC.  26  OF  ACT 

who  has  notice  of  its  unlawful  use,  may  be  sold  and  the 
proceeds  applied  as  provided  by  section  33. 

State  v.  Jones-Hansen-Cadillac  Co.  (Neb.),  172  N. 
W.  36. 

Introducing  Liquor  into  Indian  Country — Forfei- 
ture of  Vehicle  Used.— Under  Rev.  St.  §  2140,  Act  March 
1,  1907  (Comp.  St.  §§  4141,  4142),  and  supplementary 
acts,  a  special  enforcement  officer  of  the  Indian  Bureau  has 
authority  to  seize  and  subject  to  forfeiture  proceedings  an 
automobile  containing  liquor  which  he  has  reason  to  sus- 
pect is  about  to  be  introduced  into  the  Indian  country  or 
among  Indians,  where  its  introduction  is  prohibited  by  law 
or  treaty,  although  at  the  time  of  seizure  it  is  not  within 
the  Indian  country. 

United  States  v.  One  Ford  Five-Passenger  Automobile 
(D.  C.),  259  Fed.  645. 

Automobile  as  "Appurtenance." — An  automobile 
seized  July  21,  1915,  while  unlawfully  conveying  intoxicat- 
ing liquors  in  presence  of  an  officer  having  power  to  serve 
criminal  process,  was  not  subject  to  seizure  by  him  and 
forfeiture  to  the  state  under  Rev.  Laws  1910,  §  3617,  as  it 
was  not  an  "appurtenance"  within  that  section. 

Sharpe  v.  State  (Okla.),  181  Pac.  293. 

One  Cadillac  Automobile  v.  State  (Okla.),  172  Pac.  62. 

Lebrecht  v.  State  (Okla.),  172  Pac.  65. 

State  v.  One  Packard  Automobile  (Okla.),  172  Pac. 
66. 

One  Moon  Automobile  v.  State  (Okla.),  172  Pac.  66. 

Stolen  Automobile. — Where  an  automobile  was  stolen 
and  thereafter  condemned  because  transferring  intoxicat- 
ing liquors  and  sold,  the  true  owner,  who  had  no  knowledge 
of  its  illegal  use,  and  who  established  his  ownership  and 
the  theft,  might  recover  it  in  trover  against  purchaser,  as 
purchaser  got  no  better  title  than  the  possessor  had  at  the 
seizure. 

Smith  v.  Spencer-Dowler  Co.  (Ga.  App.),  100  S.  E. 
651. 

See  also,  State  v.  Davis   (Utah),  184  Pac.  161. 


TITLE  II— SEC.  26  OF  ACT  221 

Vehicle  Used — Owner's  Knowledge — Subject  to 
Seizure. — "When,  with  the  knowledge  of  the  owner,  any 
such  vehicle  is  used  on  any  of  the  public  roads  or  private 
ways  of  this  state  in  conveying  any  liquors  or  beverages, 
the  sale  or  possession  of  which  is  prohibited  by  law,  the  ve- 
hicle or  conveyance  is  subject  to  seizure  and  sale  in  the 
manner  prescribed  regardless  of  what  might  have  been  the 
purpose  and  intent  of  the  owner  or  operator  of  the  ve- 
hicle at  the  time  it  was  so  employed.  Under  the  plain  and 
explicit  terms  of  the  act  itself,  the  fact  that  the  liquors  or 
beverages  thus  conveyed  were  for  the  personal  use  of  the 
owner  or  operator  of  the  vehicle  would  not  alter  the  rule, 
but  the  provision  is  that  the  mere  use  of  a  vehicle,  wherein 
and  whereby  any  of  the  enumerated  liquors  are  conveyed 
with  the  knowledge  of  the  owner,  renders  the  vehicle  sub- 
ject to  seizure  and  sale,  regardless  of  what  may  have  been 
the  reason  in  thus  using  the  vehicle,  or  what  may  have  been 
the  purpose  as  to  the  use  or  disposition  of  the  liquors." 

Crapp  v.  State  (Ga.  App.),  98  S.  E.  174. 

Seizure  of  Liquor  in  Possession  of  Common  Car- 
rier.— Under  a  law  making  it  unlawful  to  have  in  posses- 
sion any  intoxicating  liquors,  and  providing  that  no  prop- 
erty right  shall  exist  in  such  liquors,  but  that  the  same  are 
forfeited  and  subject  to  seizure  and  destruction,  liquors  in 
possession  of  a  common  carrier  although  in  course  of  ship- 
ment in  interstate  commerce,  are  subject  to  seizure  and  for- 
feiture. 

Northern,  etc.,  Co.  v.  Brenneman  (C.  C.  A.),  259  Fed. 
514. 

Proceeding  Is  in  Rem. — Although  the  owner  is  named 
in  the  petition,  and  process  is  prayed  against  him,  the  judg- 
ment prayed  is,  however,  one  solely  in  rem,  for  the  con- 
demnation of  the  automobile. 

Mack  v.  Westbrook,  148  Ga.  690,  98  S.  E.  339,  343. 

Proceedings    to   confiscate   intoxicating   liquors   are   pro- 
ceedings in  rem  governed  by  the  rules  of  civil  procedure. 
State  v.  Great  Northern  R.  Co..  98  Wash.  197,  167  Pac. 
103. 


222  TITLE  II— SEC.  26  OF  ACT 

But  in  another  case  it  is  said  that  forfeiture  proceedings 
against  the  intoxicating  liquors  only  are  criminal  cases  gov- 
erned by  the  rules  of  criminal  law. 

Perro  v.  State,  113  Me.  493,  94  Atl.  950. 

Requirements  of  Law  to  Be  Strictly  Observed.— 
"A  proceeding  to  condemn  an  automobile  used  on  a  public 
road  or  private  way  of  this  state  in  conveying  liquors  or 
beverages,  the  sale  or  possession  of  which  is  prohibited  by 
law  (Ga.  Laws  Ex.  Sess.  1917,  p.  16,  §  20),  is  summary 
in  its  nature,  and  the  provisions  of  the  act  affording  this 
remedy  must  be  strictly  complied  with." 

Phillips  v.  Stapleton  (Ga.  App.),  97  S.  E.  885. 

"Where  there  has  been  a  signal  failure  to  comply  with 
the  provisions  of  chapter  6513  of  the  Laws  of  Florida 
(Acts  1913),  requiring  an  information  to  be  filed  within 
24  hours  after  the  seizure  of  intoxicating  liquors,  which 
have  been  shipped  into  a  county  in  which  the  sale  of  such 
liquors  is  prohibited  by  law,  as  well  as  a  failure  to  comply 
with  still  other  provisions  of  such  chapter,  a  decree  order- 
ing the  forfeiture  and  destruction  of  such  liquors  will  be 
reversed." 

Lippman  v.  State,  72  Fla.  428,  73  So.  357. 

Grounds  for  Seizure. — There  must  be  something  more 
than  mere  suspicion  to  justify  the  seizure  and  confiscation 
of  intoxicating  liquors  while  in  possession  of  a  common 
carrier  as  an  interstate  shipment. 

State  v.  Great  Northern  R.   Co.,  98  Wash.   197,   167 
Pac.  103. 

Legal  Seizure  Essential  to  Jurisdiction. — In  Maine  a 
legal  seizure  is  essential  to  jurisdiction  of  a  proceeding  in 
rem  by  libel  for  the  forfeiture  of  intoxicating  liquors,  con- 
taining vessels,  and  of  vehicles. 

State  v.  Ford  Touring  Car  No.  1,  440,316,  117  Me.  232, 
103  Atl.  364. 

That  an  officer  has  possession  of  spirituous  liquors  taken 
from  the  owner  who  kept  them  for  legal  sale  does  not 


TITLE  II— SEC.  26  OF  ACT  223 

alone   authorize   their   condemnation,   but   they   must  have 
been  legally  seized  pursuant  to  a  lawful  warrant. 

State  v.  Spirituous  Liquors,  75  N.  H.  273,  73  Atl.  169. 
State  Nat.  Bank  v.  State  (Okla.),  172  Pac.  1073. 

Liability  to  Forfeiture  Although  Wrongfully  Seized. 
—Liquors  kept  in  violation  of  law  are  none  the  less  liable 
to  forfeiture  because  the  possession  thereof  is  wrongfully 
or  illegally  obtained  by  an  officer. 

State  v.  Schoppe,  113  Me.  10,  92  Atl.  867. 

Seizure  without  Warrant. — An  officer  who  seizes 
property  without  a  warrant  is  held  to  a  strict  compliance 
with  all  the  requirements  of  law  authorizing  such  proceed- 
ings. 

State  v.  Schoppe,  113  Me.  10,  92  Atl.  867. 

Duty  of  Officers. — Under  the  Georgia  law  where  offi- 
cers found  a  barrel  of  whisky  under  defendant's  stable  and 
two  other  barrels  buried  near  by,  it  was  their  duty  to  seize 
the  same  to  be  forfeited  to  the  state. 

Thornton  v.  Skelton  (Ga.),  99  S.  E.  299. 

When  Brought  in  Name  of  State. — "The  proceeding 
authorized  by  section  20  of  the  act  in  question  (Ga.  Acts 
Ex.  Sess.  1917,  p.  16)  is  one  in  rent,  against  the  offending 
thing,  and  not  against  the  offending  owner.  It  is  not  de- 
cided that  the  solicitor  of  the  court  having  jurisdiction  had 
not  legal  capacity  to  institute  condemnation  proceedings  in 
his  name  as  solicitor;  but  it  is  suggested  that  the  proceed- 
ing, in  the  nature  of  an  information  should  properly  be 
brought  in  the  name  of  the  state." 

Mack  v.  Westbrook,  148  Ga.  690,  98  S.  E.  339,  340. 

Petition  and  Amendment  Thereof. — A  petition, 
headed  "State  of  Georgia,  Whitfield  County,"  directed  "To 
the  Superior  Court  of  Said  County,"  and  regularly  filed  in 
the  office  of  the  clerk  of  that  court,  which  contained  the 
following  paragraph :  "The  above-described  car  is  the  prop- 
erty of  Tom  Burgan,  of  Catoosa  county,  Georgia,  and  was 
being  used  by  him,  and  by  others  with  his  knowledge  and 


224  TITLE  II— SEC.  26  OF  ACT 

consent,  in  the  transporting  of  intoxicating  liquors  over 
and  through  the  public  highways  of  said  county  in  viola- 
tion of  law,"  was  properly  amended  by  inserting  after  the 
word  "county,"  in  the  latter  part  of  the  paragraph,  the 
words  "of  Whitfield."  Perry  v.  Mulligan,  58  Ga.  479;  Hall 
v.  Mobley,  13  Ga.  318;  Cowart  v.  Young,  74  Ga.  694;  Mur- 
phy v.  Peabody,  63  Ga.  522.  In  the  last-named  case  Judge 
Bleckley  says  in  the  opinion  (page  524)  :  "The  rule  of 
amendment  is  as  broad  as  the  doctrine  of  universal  salva- 
tion." 

Burgan  v.  State  (Ga.  App.),  99  S.  E.  636. 

Petition — Amendment — Demurrer. — After  petition,  in 
proceeding  to  condemn  car  unlawfully  used  to  transport  liq- 
uors, was  amended  so  as  to  charge  its  use  on  highways  of 
county  of  Whitfield,  a  demurrer  filed  by  defendant,  alleg- 
ing that  jurisdiction  is  in  superior  court  of  Catoosa  county, 
because  petition  before  amendment  alleged  that  it  was  seized 
while  used  in  that  county,  was  properly  stricken. 
Burgan  v.  State  (Ga.  App.),  99  S.  E.  636. 

And  the  special  plea  to  the  jurisdiction  was  also  properly 
stricken,  after  the  petition  was  so  amended. 
Burgan  v.  State  (Ga.  App.),  99  S.  E.  636. 

Findings  of  Fact — Necessity. — In  a  proceeding  for 
the  forfeiture  of  intoxicating  liquors,  libeled  by  the  state 
and  claimed  by  the  carrier  in  whose  possession  they  were 
found,  specific  findings  of  fact  are  unnecessary  to  support 
a  judgment  of  forfeiture;  such  judgment  being  a  finding 
for  the  state  upon  all  the  issues  of  fact  necessary  to  sup- 
port the  libel. 

State  v.  Intoxicating  Liquors,  112  Me.  138,  91  Atl.  175. 

Burden  of  Proof. — If  action  to  defeat  any  property 
rights  in  and  destroy  certain  intoxicating  liquors  is  tried 
as  an  action  in  rem,  plaintiffs  have  the  burden  of  proving 
the  allegations  of  forfeiture. 

Noble  v.  People  (Colo.).  177  Pac.  970. 

Proof  Requisite. — In  a  proceeding  for  the  seizure  and 
condemnation  of  intoxicating  liquors  alleged  to  have  been 


TITLE  II— SEC.  26  OF  ACT  225 

kept  for  unlawful  sale,  the  state  is  not  required  to  prove  the 
keeping  for  sale  beyond  a  reasonable  doubt,  but  only  by  a 
fair  preponderance  of  the  evidence. 

State  v.  Intoxicating  Liquor,  82  Vt.  287,  73  Atl.  586. 

Although  a  statute  provides  that  there  shall  be  no  prop- 
erty right  in  liquors  kept  or  used  for  the  purpose  of  vio- 
lating any  provision  of  the  act,  the  facts  constituting  for- 
feiture must  be  made  to  appear  in  court,  or  in  some  legal 
manner  or  proceeding  and  cannot  be  declared  upon  default 
without  any  evidence. 

Noble  v.  People  (Colo.),  177  Pac.  970. 

In  this  case  the  court  said:  "In  McConathy  v.  Deck,  34 
Colo.  461,  466,  83  Pac.  135,  4  L.  R.  A.,  N.  S.,  358n,  7  Ann. 
Cas.  896,  and  the  many  citations  and  quotations  therein,  the 
principle  is  announced  that  forfeitures  take  place  imme- 
diately, under  the  statute,  without  any  proceeding  to  de- 
clare a  forfeiture,  upon  the  happening  of  the  event;  still, 
in  all  forfeiture  cases  that  we  have  been  able  to  examine, 
the  facts  constituting  the  forfeiture  were  made  to  appear  in 
court  before  the  forfeiture  could  be  pronounced  or  made 
effectual.  The  owner  of  the  property  must  be  afforded  the 
means  of  demanding  and  enforcing  his  constitutional  right 
to  defend  and  protect  his  property  against  forfeiture.  In 
all  cases  where  the  rule  has  been  announced,  it  has  been 
in  court  where  the  owner  had  the  opportunity  to  defend  his 
property  rights.  If  we  concede  section  20  of  the  statute 
warrants  such  a  proceeding,  the  property  rights  of  defend- 
ants could  only  be  defeated  by  proof  on  the  trial  of  facts 
constituting  a  forfeiture.  A  forfeiture,  under  the  circum- 
stances, could  not  be  declared  upon  default  without  any 
evidence." 

Noble  v.  People  (Colo.),  177  Pac.  970,  974. 

Presumptions. — When  intoxicating  liquors  have  been 
found  illegally  in  an  automobile  used  for  their  transporta- 
tion it  is  prima  facie  evidence  that  the  car  was  being  used 
illegally,  and  one  desiring  to  recover  the  car  must  establish 
by  a  preponderance  of  the  evidence,  not  beyond  a  reason- 


226  TITLE  II— SEC.  26  OF  ACT 

able  doubt,  the  fact  of  his  ownership,  and  that  he  had  no 
knowledge  of  the  illegal  use. 

State  v.  Davis  (Utah),  184  Pac.  161. 

Return  of  Officer  Not  Evidence. — Where  an  automo- 
bile was  seized  by  an  officer  without  warrant  as  a  thing 
used  in  violation  of  the  prohibition  laws,  such  return  is  of 
itself  incompetent  as  evidence  to  prove  any  unlawful  char- 
acteristics thereof,  or  to  establish  facts  which  distinguish 
it  or  its  use  as  illegal  or  prohibited  at  the  time  of  its  sei- 
zure. 

Cox  v.  State  (Okla.),  160  Pac.  895. 

Credibility  of  Witnesses. — In  search,  seizure,  and  for- 
feiture proceedings,  the  credibility  of  the  witnesses  is  pecu- 
liarly within  the  province  of  the  trial  court,  which  is  not 
bound  by  the  statements  of  defendants,  particularly  where 
the  inferences  deducible  from  the  undisputed  facts  were 
contrary  to  such  statements. 

State  v.  Jenson  (Utah),  184  Pac.  179. 

Interest  of  Mortgagee. — Under  a  statute  authorizing 
the  seizure  of  a  vehicle  used  in  conveying,  concealing  or 
removing  intoxicating  liquors,  and  providing  on  conviction 
of  the  defendant  that  he  shall  forfeit  and  lose  all  right, 
title  and  interest  in  and  to  the  property  seized  and  provid- 
ing for  the  sale  of  the  property  seized  when  no  person  is 
arrested,  and  for  distribution  of  the  proceeds  of  the  sale, 
where  the  owner  of  an  automobile  is  arrested,  the  interest 
of  a  mortgagee  who  had  no  knowledge  of  the  use  being 
made  of  the  machine  is  not  forfeited. 

Skinner  v.  Thomas,  171  N.  C.  98,  87  S.  E.  976,  L.  R. 
A.  1916E,  338n. 

Shawnee  Nat.  Bank  v.  United  States,  161  C.  C.  A.  509, 
249  Fed.  583. 

Maples  v.  State  (Ala.),  82  So.  183. 

Presumption. — Where,  in  a  proceeding  under  Rev.  St. 
§  2140  (U.  S.  Comp.  St.  1916,  §  4141),  to  forfeit  an  auto- 
mobile on  the  ground  that  it  was  used  as  a  means  for  the 
introduction  of  intoxicating  liquor  into  Indian  country,  the 
court  found  that  a  chattel  mortgagee  had  a  valid  lien,  but 


TITLE  II— SEC.  26  OF  ACT  227 

that  it  was  inferior  to  the  rights  of  the  United  States  un- 
der the  forfeiture  proceeding,  it  must  be  presumed,  in  ab- 
sence of  evidence,  that  the  mortgagee  had  nothing  to  do 
with  the  introduction  of  the  liquor  into  Indian  country. 
Shawnee  Nat.  Bank  v.  United  States,  161  C.  C.  A.  509, 
249  Fed.  583. 

But  a  provision  that  automobiles  used  in  introducing  in- 
toxicants in  violation  of  law,  whether  used  by  the  owner  or 
other  person,  shall  be  subject  to  forfeiture  applies  to  inter- 
est of  mortgagee,  though  machine  is  used  contrary  to  pro- 
vision of  mortgage. 

United  States  v.  One  Seven  Passenger  Paige  Car  (D. 
C.),  259  Fed.  641. 

Other  Liens  on  Property  Seized.— In  a  statutory  pro- 
ceeding to  condemn  or  confiscate  a  vehicle  employed  in  the 
illegal  transportation  of  liquor,  contrary  to  the  provisions 
of  law  where  the  owner  of  the  vehicle  had  previously  sold 
it  to  the  party  engaged  in  the  illegal  transaction,  but  re- 
served title  to  it  until  full  payment  of  the  purchase  price, 
part  of  which  purchase  price  was  represented  by  a  reten- 
tion of  title  note  duly  recorded,  and  the  remainder  of 
which  was  by  agreement  to  be  covered  by  a  similar  note,  in 
case  the  vendee  failed  to  pay  the  remainder  on  or  before 
a  date  specified  and  where  the  evidence  disclosed  that  the 
vendors  were  wholly  without  knowledge  of  the  illegal  in- 
tent or  acts  of  the  vendee,  and  the  property  was  seized  in 
behalf  of  the  state  before  the  agreed  time  when  the  second 
note  reserving  title  was  to  be  executed  in  the  event  that 
the  amount  to  be  covered  thereby  had  not  been  previously 
paid,  the  owner  would  be  entitled  to  the  full  amount  of  the 
purchase  money  due  as  might  appear  from  the  evidence,  in- 
cluding both  the  amount  covered  by  the  note  actually  given 
and  the  note  agreed  to  be  given. 

Whites  v.  State  (Ga.  App.),  98  S.  E.  171. 

Where  an  automobile  is  sold  on  installments,  if  the  ven- 
dor or  his  assignee  has  no  knowledge  or  information  of  the 
car's  intended  use  in  the  illegal  transportation  of  intoxi- 
cating liquors  he  is  entitled  to  reclaim  it  when  seized  by  the 
sheriff  for  forfeiture. 

State  v.  Davis  (Utah),  184  Pac.  161. 


228  TITLE  II— SEC.  26  OF  ACT 

Want  of  Recordation  Does  Not  Defeat. — In  a  pro- 
ceeding to  condemn  an  automobile  illegally  employed  in  the 
transportation  of  intoxicating  liquors,  where  the  owner  had 
conditionally  sold  it  to  the  party  engaged  in  the  illegal  trans- 
action under  a  contract  reserving  title  until  payment,  the 
mere  fact  that  such  contract  had  not  been  recorded  does  not 
defeat  the  seller's  claim  of  title. 

Armington  &  Sons  v.  State  (Ga.  App.),  100  S.  E.  15. 

Want  of  Knowledge  or  Consent  of  Owner  as  De- 
fense.— Where  undisputed  facts  showed  that  neither  taxi- 
cab  owner  nor  chauffeur  knew  that  passenger  was  using  car 
to  transport  intoxicating  liquor,  and  that  the  owner  had 
not  been  negligent  in  employing  the  chauffeur,  and  had  di- 
rected him  not  to  use  the  car  for  such  illegal  purposes,  the 
court  could  not  order  the  car  forfeited  and  destroyed  un- 
der a  law  providing  for  forfeiture  of  vehicles  used  in  vio- 
lating the  liquor  laws. 

State  v.  Southern  Exp.  Co.   (Ala.),  75  So.  343. 

The  Alabama  act  does  not  contemplate  the  condemna- 
tion and  selling  of  property  of  those  who  did  not  aid  or  as- 
sist in  the  unlawful  transportation  of  liquors  or  who  were 
not  chargeable  with  notice  or  knowledge  that  their  prop- 
erty was  to  be  used  for  such  purpose ;  the  words  "aided  and 
assisted"  implying  either  knowledge  on  the  part  of  the  per- 
son assisting  or  such  negligence  as  to  charge  him  with 
knowledge  that  his  property  is  to  be  used  in  violation  of 
law. 

State  v.  Hughes  (Ala.),  82  So.  104. 

Acquittal  of  Defendant  in  Criminal  Prosecution  as 
Defense. — Acquittal  of  defendant  in  a  prosecution  for 
having  liquors  unlawfully  in  his  possession,  had  no  bearing 
in  a  subsequent  action  by  the  state  under  such  act  looking 
only  to  the  destruction  of  the  liquor. 

State  v.  Certain  Intoxicating  Liquors  (Utah),  177  Pac. 
235. 

But  it  has  also  been  held  that  when  a  defendant  has  been 
indicted,  convicted,  and  punished  under  Act  Aug.  10,  1917, 


TITLE  II— SEC.  26  OF  ACT  229 

§  15  (Comp.  St.  1918,  §  3115^1),  for  importing  distilled 
spirits  in  violation  of  its  prohibition,  he  cannot  be  pro- 
ceeded against  in  rem  for  forfeiture  of  the  vehicles  used  in 
bringing  in  such  spirits,  under  Rev.  St.  §  3062  (Comp.  St. 
§  5764),  but  the  spirits,  being  unlawfully  in  the  United 
States,  may  be  seized  and  condemned. 

In  re  Food  Conservation  Act  (D.  C.),  254  Fed.  893. 

Verdict  of  Acquittal  as  Evidence. — Where  the  state 
institutes  an  action  to  condemn  an  automobile  under  sec- 
tion 20  of  the  act  of  1917  (Ga.  Laws  Ex.  Sess.  1917,  p. 
16),  providing  for  the  forfeiture  of  any  vehicle  in  which 
spirituous  liquors  are  carried  on  any  public  road  or  private 
way  in  this  state,  and  the  action  is  resisted  by  the  interpo- 
sition of  a  claim,  if  the  defendant  was  a  person  who  had 
been  indicted  and  acquitted  of  a  penal  charge  based  on  the 
same  transaction,  the  verdict  of  acquittal  founded  on  his 
illegal  possession  of  the  the  liquor  seized  with  the  automo- 
bile is  admissible  in  support  of  the  claim.  Where  the  claim 
is  interposed  by  a  third  person,  the  general  rule  is  that  the 
verdict  of  acquittal,  though  based  on  the  same  transaction, 
is  inadmissible. 

Duncan  v.  State  (Ga.),  99  S.  E.  612. 

S.  C,  100  S.  E.  38. 

Error  in  Striking  Defense. — Where  the  court  erred  in 
striking  the  defense  filed  by  claimant  in  a  proceeding  to 
condemn  an  automobile,  the  further  proceedings  were 
nugatory. 

Griffin  v.  Smith  (Ga.  App.),  99  S.  E.  386. 

Custody   Pending  Hearing. — \Vhen  the   law   did  not 

provide  for  notice  and  hearing  before  destroying  property, 
but  the  driver  and  the  owner  were  nevertheless  notified  that 
a  hearing  would  be  had  before  the  police  judge,  to  show 
cause  why  the  taxicab  should  not  be  adjudged  forfeited 
and  ordered  destroyed,  pending  such  determination,  the  ve- 
hicle was  rightfully  in  the  custody  of  the  officers,  and  not 
the  subject  of  replevin  by  its  owner. 

Allison  v.  Hern,  102  Kan.  48,  169  Pac.  187. 

Property  seized  by  an  officer  pursuant  to  a  warrant  is- 
sued in  proceedings  against  an  unlicensed  drinking  place, 


230  TITLE  II— SEC.  26  OF  ACT 

is,  after  seizure,  in  the  custody  of  the  law,  and  the  posses- 
sion thereof  by  the  officer  cannot  be  disturbed  until  the  pro- 
ceedings are  terminated  and  an  order  of  the  court  dispos- 
ing of  the  property  is  made  and  served  upon  him,  or  in 
some  way  brought  to  his  official  attention.  Until  such  or- 
der is  made  by  the  court,  neither  an  action  for  the  posses- 
sion, for  the  conversion  or  for  the  loss  of  the  property  by 
the  negligence  of  the  officer,  can  be  maintained  by  the 
owner  of  the  property  or  by  any  person  claiming  an  inter- 
est therein. 

Sponnick  v.  Duluth,  123  Minn.  528,  143  N.  W.  970. 

Intervention  by  Claimant. — In  proceedings  to  con- 
demn an  automobile,  the  owner  has  the  right  to  intervene 
and  file  a  "defense." 

Griffin  v.  Smith  (Ga.  App.),  99  S.  E.  386. 

Necessary  Allegations. — The  allegation  by  a  claimant 
to  intoxicating  liquors  which  had  been  seized,  that  he  was 
interested  in  the  property  seized  is  defective  for  failure  to 
show  that  the  claimant  had  such  an  interest  as  entitled  him 
to  defend. 

Toole  v.  State,  170  Ala.  41,  54  So.  195. 
Burgan  v.  State  (Ga.  App.),  99  S.  E.  636. 

Demurrer  Thereto — Effect. — Demurrer  to  interven- 
tion in  seizure  of  a  shipment  of  liquor  admits  the  facts  al- 
leged showing  the  shipment  was  lawful. 

State  v.  Pensacola,  etc.,  S.  S.  Co.   (Ala.),  75  So.  892. 

Affidavit  and  Bond. — In  proceedings  to  condemn  an  au- 
tomobile instituted  under  the  Georgia  law,  the  owner  is  not 
required  to  make  affidavit  and  give  bond  as  in  claim  cases. 

Griffin  v.  Smith  (Ga.  App.),  99  S.  E.  386. 

Bailee  for  Hire  as  Claimant. — A  claimant,  who  is 
bailee  for  hire  of  the  liquors,  has  special  title  thereto  which 
entitles  him  to  possession  of  the  liquors  against  a  wrong- 
ful seizure. 

State  v.  Intoxicating  Liquors,  112  Me.  393,  92-Atl.  326. 


TITLE  II— SEC.  26  OF  ACT  231 

Intervention  by  Carrier.— A  carrier  which  has  law- 
fully assumed  the  delivery  of  an  interstate  shipment  of  liq- 
uor, authorized  by  law,  may  intervene  in  a  seizure  thereof 
as  a  "person  claiming  any  right,  title  or  interest"  therein. 

State  v.  Pensacola,  etc.,  S.  S.  Co.  (Ala.),  75  So.  892. 

Manager  of  Bottling  Works— Authority  to  Appear 
and  Claim  for  Owner. — The  statute  authorizing  the  owner 
to  make  claim  for  liquors  under  seizure  and  secure  their 
release  contemplates  an  appearance  by  the  real  owner  per- 
sonally or  by  a  properly  authorized  representative,  and 
hence  the  manager  of  bottling  works,  in  which  liquors, 
when  seized,  were  in  store  awaiting  the  time  when,  aug- 
mented by  further  orders  and  collections,  they  should  be 
shipped  to  their  real  owners  outside  the  state,  was  not  en- 
titled to  claim  the  liquors,  as  he  was  not  such  a  party  in 
interest  as  the  law  contemplated  nor  a  properly  authorized 
agent  of  such  a  party. 

State  v.  Intoxicating  Liquors,  112  Me.  220,  91  Atl.  947. 

Burden  of  Proof  on  Claimant. — If  action  to  defeat 
property  rights  in  and  to  destroy  certain  intoxicating  liq- 
uors is  tried  as  a  replevin  suit,  the  parties  claming  title  to 
the  liquors  must  recover  upon  the  strength  of  their  own 
title. 

Noble  v.  People  (Colo.),  177  Pac.  970. 

Burden  of  Proof  as  to  Right  of  Claimant  to  Custody. 
—Under  Maine  Rev.  St.  c.  29,  §  51,  providing  that  upon 
hearing  of  a  claim  for  intoxicating  liquors  seized  by  the 
state,  the  magistrate,  if  satisfied  that  the  liquors  were  not 
kept  or  deposited  for  unlawful  sale,  and  that  the  claimant 
is  entitled  to  custody  thereof,  shall  give  him  an  order  for 
the  return  of  the  liquors,  the  claimant  is  bound  to  show, 
not  only  that  the  liquors  were  not  kept  or  deposited  for  un- 
lawful sale,  but  that  he  is  entitled  to  their  custody;  the 
burden  of  proving  that  issue  being  on  the  claimant. 

State  v.  Intoxicating  Liquors,  112  Me.  138,  91  Atl.  175. 

Injunction  by  Claimant. — "In  Gunn  v.  Atwell,  148  Ga. 
137,  96  S.  E.  2,  it  appeared  that  a  certain  automobile  in  the 


232  TITLE  II— SEC.  26  OF  ACT 

posssession  of  one  Jenkins,  and  in  which  intoxicating  liquors 
were  found,  was  seized  by  police  officers  of  the  city  of  Ma- 
con,  and  the  seizure  was  reported  to  the  solicitor  of  the 
city  court  of  Macon,  who  instituted  condemnation  proceed- 
ings under  section  20  of  the  prohibition  laws  of  this  state, 
approved  March  28,  1917.  (Acts  Ex.  Sess.  1917,  p.  16.) 
Atwell  filed  an  equitable  petition  in  which  it  was  alleged 
that  Jenkins  was  neither  the  owner  nor  a  lessee  of  the  car, 
but  that  Atwell  was  the  owner  thereof  and  had  no  knowl- 
edge that  Jenkins  had  used  the  automobile  for  the  pur- 
pose of  transporting  intoxicating  liquors ;  and  Atwell  prayed 
that  the  officers  be  required  to  surrender  the  automobile, 
and  for  injunction  and  general  relief.  It  was  ruled,  in  the 
case  cited,  that  section  20  of  the  act  supra,  provides  an  ade- 
quate remedy  at  law  for  an  adjudication  of  all  the  rights 
of  the  defendant  in  error;  and  therefore  there  was  no 
ground  for  equitable  jurisdiction.  The  facts  in  the  instant 
case  bring  it  clearly  within  that  ruling ;  and  there  was  no  error 
in  refusing  to  order  the  sheriff  of  the  county  to  deliver 
the  possession  of  the  car  to  the  plaintiff,  and  to  enjoin 
the  pending  condemnation  proceedings  in  the  city  court; 
the  plaintiff  having  an  adequate  remedy  at  law  for  the  ad- 
judication of  the  rights  claimed  by  her  in  the  petition  for 
injunction." 

Nesmith  v.  Martin  (Ga.),  98  S.  E.  551. 

Condemnation  of  Excess  Quanitity  as  Contraband. — 

The  provision  of  a  law  prohibiting  the  possession  of  excess 
quantities  of  intoxicating  liquors,  operates  in  rem  so  that 
any  such  excess  quantity  is  contraband  and  subject  to  con- 
demnation, regardless  of  the  finding  as  to  the  owner. 

State  v.  Martin,  92  Wash.  366,  159  Pac.  88. 

Order  of  Court  Necessary  for  Destruction. — Under 
Rev.  St.  U.  S.  §  2140  (U.  S.  Comp.  St.  §  4141),  an  officer 
of  the  United  States  had  no  right  to  destroy  at  a  point  in 
Kansas  intoxicating  liquors  which  had  been  seized  from 
costody  of  railroad,  on  ground  they  were  to  be  shipped  into 
adjacent  Indian  territory,  without  a  valid  order  of  court 
authorizing  him  so  to  do,  but  his  seizure,  if  he  had  reason 
to  suspect  or  was  informed  the  liquor  was  about  to  be  in- 


TITLE  II— SEC.  26  OF  ACT  233 

troduced  into  Indian  territory,  may  have  been  valid,  despite 
its  subsequent  illegal  destruction. 

Danciger  v.  Atchison,  etc.,  R.  Co.  (Mo.),  212  S.  W.  5. 

Order  for  Destruction — Force. — The  provision  of  the 
judgment  of  conviction  against  plaintiff,  of  receiving  liquor 
in  greater  quantity  than  allowed  by  law,  that  the  officer,  in 
whose  possession  it  was  under  a  seizure,  destroy  it,  cannot 
be  avoided  in  an  action  against  the  officer  to  recover  it. 
Felia  v.  Belton,  170  N.  C.  112,  86  S.  E.  999. 

Unlawful  Seizure  of  Liquor  from  Druggist— Return. 

See  ante,  under  §  8. 

Restraining  Order  against  Return  of  Automobile.— 

Where  intoxicating  liquor  and  an  automobile  were  seized 
and  the  liquor  destroyed,  the  obtaining  of  an  ex  parte  order, 
restraining  the  sheriff  from  returning  the  automobile  until 
a  full  hearing  was  had,  did  not  deprive  the  owner  of  prop- 
erty without  due  process  of  law;  such  order  simply  holding 
matters  in  statu  quo. 

State  v.  Raph  (la.),  168  N.  W.  259,  260. 

Appeal  and  Error. — Where  the  trial  court  found  that 
a  chattel  mortgagee  had  a  valid  lien  on  an  automobile, 
sought  to  be  forfeited  because  used  by  the  mortgagor  to 
carry  intoxicating  liquors  into  Indian  country,  but  declared 
the  lien  inferior  to  the  claim  of  the  United  States,  the  mort- 
gagee was  entitled  to  raise  on  such  record  the  question 
whether  the  automobile  was  subject  to  forfeiture,  as  well 
as  whether  its  interest  could  be  forfeited,  as  the  findings 
did  not  support  the  judgment. 

Shawnee  Nat.  Bank  v.  United  States,  161  C.  C.  A.  509, 
249  Fed.  583,  584. 


TITLE  II— SEC.  29 

Penalties — For  Sale  or  Manufacture — For  Violating  Per- 
mit, False  Records,  Reports,  Affidavits,  etc. 

SEC.  29.  Any  person  who  manufactures  or  sells  liq- 
uor in  violation  of  this  title  shall  for  a  first  offense  be 
fined  not  more  than  $1,000,  or  imprisoned  not  exceed- 
ing six  months,  and  for  a  second  or  subsequent  offense 
shall  be  fined  not  less  than  $200  nor  more  than  $2,000 
and  be  imprisoned  not  less  than  one  month  nor  more 
than  five  years. 

Any  person  violating  the  provisions  of  any  permit, 
or  who  makes  any  false  record,  report,  or  affidavit  re- 
quired by  this  title,  or  violates  any  of  the  provisions  of 
this  title,  for  which  offense  a  special  penalty  is  not  pre- 
scribed, shall  be  fined  for  a  first  offense  not  more  than 
$500;  for  a  second  offense  not  less  than  $100  nor  more 
than  $1,000,  or  be  imprisoned  not  more  than  ninety 
days;  for  any  subsequent  offense  he  shall  be  fined  not 
less  than  $500  and  be  imprisoned  not  less  than  three 
months  nor  more  than  two  years.  It  shall  be  the  duty 
of  the  prosecuting  officer  to  ascertain  whether  the  de- 
fendant has  been  previously  convicted  and  to  plead  the 
prior  conviction  in  the  affidavit,  information,  or  indict- 
ment. The  penalties  provided  in  this  Act  against  the 
manufacture  of  liquor  without  a  permit  shall  not  ap- 
ply to  a  person  for  manufacturing  nonintoxicating 
cider  and  fruit  juices  exclusively  for  use  in  his  home, 
but  such  cider  and  fruit  juices  shall  not  be  sold  or  de- 
livered except  to  persons  having  permits  to  manufac- 
ture vinegar. 

Making  Breach  of  Act  a  Felony — Constitutionality. 

— The  provision  in  the  act  passed  by  the  General  Assembly 


TITLE  II— SEC.  29  OF  ACT  235 

of  Georgia  at  its  extraordinary  session  held  in  March,  1917, 
and  approved  March  28,  1917  (Acts  Ex.  Sess.  1917, 'p.  7)', 
entitled  "An  act  to  amend  and  supplement  the  prohibition 
laws  of  this  state,"  etc.,  which  declares  that  any  one  who 
distills,  manufactures,  or  makes  alcoholic  or  spirituous  liq- 
uor, or  malted  liquor  any  part  of  which  is  alcoholic,  within 
this  state,  shall  be  guilty  of  a  felony,  is  not  unconstitutional 
as  violating  the  due  process  clause  of  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States. 

Delaney  v.  Plunkett,  146  Ga.  547,  91  S.  E.  561    L   R 

A.  1917D,  926n,  Ann.  Cas.  1917E,  685. 
Yaughan  v.  State,  148  Ga.  517,  97  S.  E.  540. 

Right  to  Create  Criminal  Offense.— "The  legislative 
act  making  it  a  crime  'for  any  person  *  *  *  '  to  keep  a 
place  with  the  intent  of  or  for  the  purpose  of  manufactur- 
ing, selling,  bartering,  giving  away,  or  otherwise  furnish- 
ing, any  spirituous,  vinous,  fermented  or  malt  liquors,  or 
compounds  whatever,  *  *  *  is  not  condemned  by  the 
constitutional  provisions  guaranteeing  due  process  of  law 
and  the  equal  protection  of  the  law." 

Proctor  v.  State  (Okla.  Cr.  App.),  176  Pac.  771. 

Construction — Plural  as  Including  Singular  Number. 
— The  words  "violations"  and  "provisions"  contained  in  the 
first  section  of  the  act  providing  for  punishment  for  per- 
sistent violators  of  the  prohibitory  liquor  law,  include  the 
singular  number  of  the  words  mentioned. 

State  v.  Watson,  92  Kan.  983,  142  Pac.  956. 

Abatement   of  Nuisance  and  Personal   Punishment. 

—It  clearly  is  legislative  intent  as  expressed  in  one  section 
of  a  law  to  provide  for  two  penalties,  one  the  abatement  of 
the  offending  premises,  the  other  punishment  of  the  offend- 
ing person,  leaving  the  character  and  the  extent  of  the  pun- 
ishment against  the  offending  person  to  the  subsequent  sec- 
tion. 

State  v.  Clancy,  97  Wash.  410,  166  Pac.  778. 


TITLE  H— SEC.  32 

Trial. 
I.  Indictment,  Information  and  Warrant. 

1.  Definitions. 

2.  Specification   of   Offense. 

3.  Averment  of    Scienter  and   Intent. 

4.  Requisite  Certainty. 

5.  Clerical  Errors  and  Verbal  Inaccuracies. 

6.  Surplusage. 

7.  Statutory  Language. 

8.  Bill  of  Particulars. 

9.  Negative  Averments. 

10.  Misjoinder,  Duplicity,  etc. 

11.  Averments  of  Place. 

12.  Averments  of  Time. 

13.  Averments  of  Quantity  and  Price. 

14.  Averments  of  Names. 

15.  Averments  of  Kind  of  Liquor. 

16.  Averments  of  Intoxicating  Character. 

17.  Averments  of  Prior  Offenses. 

18.  Indictments  for  Special  Offenses. 

19.  Amendments. 
n.  Arrest. 

Hi.  Defenses. 

IV.  Jurisdiction. 
V.  Continuance. 

VI.  Election  between  Offenses  Charged. 
VII.  Argument  of  Counsel. 
Vni.  Misconduct  of  Court  or  Officers. 

IX.  Jury. 
X.  Instructions. 

XI.  Verdict. 
XII.  Arrest  of  Judgment. 

XIII.  New  Trial. 

XIV.  Sentence  and  Punishment. 

XV.  Appeal  and  Error. 

XVI.  Costs  and  Expenses. 

For  "Evidence,"  see  Sec.  34,  post. 


TITLE  II— SEC.  32  OF  ACT  237 

I.  Indictment,  Information  and  Warrant. 

SBC.  32.  In  any  affidavit,  information,  or  indictment 
for  the  violation  of  this  Act,  separate  offenses  may  be 
united  in  separate  counts  and  the  defendant  may  be 
tried  on  all  at  one  trial  and  the  penalty  for  all  offenses 
may  be  imposed.  It  shall  not  be  necessary  in  any  affi- 
davit, information,  or  indictment  to  give  the  name  of 
the  purchaser  or  to  include  any  defensive  negative 
averments,  but  it  shall  be  sufficient  to  state  that  the  act 
complained  of  was  then  and  there  prohibited  and  un- 
lawful, but  this  provision  shall  not  be  construed  to 
preclude  the  trial  court  from  directing  the  furnishing 
the  defendant  a  bill  of  particulars  when  it  deems  it 
proper  to  do  so. 

1.  DEFINITIONS. 

"Intoxicated." — The  word  intoxicated  in  an  indict- 
ment charging  a  violation  of  a  statute  providing  that  no  per- 
son shall  knowingly  sell  intoxicating  liquor  to  any  intoxi- 
cated persons,  means  a  materially  changed  condition  pro- 
duced by  the  immoderate  or  excessive  use  of  intoxicants  as 
contrasted  with  normal  condition  and  conduct. 

O'Donnell  v.  Commonwealth,  108  Va.  882,  62  S.  E.  373. 

Oath  to  Warrant  or  Complaint. 

The  law  does  not  require  the  state  to  disclose  in  the  first 
instance  that  the  prosecuting  officers  in  a  liquor  prosecution 
had  notice  or  knowledge  of  the  offense  when  the  complaint 
was  sworn  to. 

State  v.  Smith,  96  Kan.  320,  150  Pac.  640. 

Under  the  Alabama  statute  (Acts  1915,  p.  32,  §  32),  pro- 
viding that,  when  prosecution  for  violation  of  the  prohibi- 
tion law  is  begun  by  affidavit,  as  there  authorized,  it  may 
continue,  in  whatever  court  trial  shall  be  had,  on  such  affi- 
davit, the  solicitor,  on  appeal  of  the  case  from  the  county 
court  to  circuit  court,  need  not  file  a  complaint  or  brief 
statement  of  the  case,  as  required  by  Code  1907,  §  6730,  on 
such  appeal  in  other  misdemeanor  cases. 

Cockran  v.  State  (Ala.),  82  So.  560. 

Walker  v.  State  (Ala.  App.),  81  So.  179. 


238  TITLE  II— SEC.  32  OF  ACT 

2.  SPECIFICATION  OF  OFFENSE. 

Under  a  statute  requiring  the  indictment  to  state  the  of- 
fense with  a  degree  of  certainty  that  will  enable  the  court 
to  pronounce  proper  judgment,  an  indictment  to  support  a 
judgment  of  conviction  must  aver  every  fact  necessary  to 
an  affirmation  of  guilt,  and  the  statement  of  bald  conclu- 
sions will  not  suffice. 

Holt  v.  State  (Ala.  App.),  78  So.  315. 

Thus  where  the  law  makes  it  an  offense  to  transport  for 
sale  ardent  spirits,  or  to  advertise  for  sale  or  to  aid  in  pro- 
curing ardent  spirits,  or  to  act  as  agent  or  employee  in  cer- 
tain instances,  but  without  specifying  the  facts  constituting 
these  separate  offenses,  an  indictment  failing  to  set  forth 
the  acts  done  constituting  these  offenses  is  insufficient. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652,  653. 

3.  AVERMENT  OF  SCIENTER  AND  INTENT. 

An  information,  charging  the  importation  of  intoxicat- 
ing liquors  in  violation  of  law,  is  not  defective  because  not 
charging  that  defendant  knew  the  liquor  was  intoxicating. 

Balfe  v.  People   (Colo.),  179  Pac.   137. 

"  'We  see  no  force,'  said  the  court,  'in  the  objection  that  it 
was  not  charged  that  the  accused  knew  that  the  liquor  was 
intoxicating.  The  only  case  cited  in  its  support  is  from 
Maine,  where  the  offense  was  denned  as  "knowingly"  trans- 
porting, etc.'  " 

Balfe  v.  People  (Colo.),  179  Pac.  137,  138. 

An  indictment  under  a  statute  charging  that  accused's 
dwelling  house  was  a  place  where  intoxicants  were  illegally 
kept,  sold,  given  away,  etc.,  need  not  allege  in  terms  that  he 
knew,  or  consented  to  the  prohibited  acts. 

State  v.  Arsenault,  106  Me.  192,  76  Atl.  410. 

But  under  a  statute  making  it  an  offense  to  transport 
or  deliver  liquor  to  persons  in  dry  territory  or  to  minors,  a 
carrier  transporting  or  delivering  such  liquor  must  know 
that  the  consignee  came  within  the  prohibited  class,  and 


TITLE  II— SEC.  32  OF  ACT  239 

an   indictment   under   such  section   is   fatally   defective,   if 
it  does  not  charge  knowledge  on  the  part  of  the  carrier. 
Adams  Exp.  Co.  v.  Commonwealth,  177  Ky.  449  197  S 
W.  957. 

An  information  which  alleges  that  the  defendant  had  in 
his  possession  intoxicating  liquors,  and  which  does  not  allege 
generally  an  intention  to  violate  the  provisions  of  the  pro- 
hibitory law,  or  specifically  allege  an  intention  to  sell,  bar- 
ter, give  away  and  otherwise  furnish  such  liquors,  is  too 
indefinite  to  charge  any  offense  and  a  demurrer  thereto 
should  have  been  sustained. 

Park  v.  State,  120  Okla.  Cr.  App.  302,  155  Pac.  494. 

An  indictment  against  a  physician  for  wrongfully  issu- 
ing a  prescription  for  liquor  charging  that  accused  did 
unlawfully  make  out  and  issue  to  M.  a  prescription  for 
intoxicating  liquor,  and  for  a  compound  of  which  intoxicat- 
ing liquor  formed  a  part,  to  be  used  otherwise  than  for 
medicinal  purpose,  was  in  the  language  of  the  statute,  and 
sufficiently  charged  that  the  prescription  was  not  issued 
with  the  intent  that  the  liquor  should  be  used  for  medicinal 
purposes. 

State  v.  Bates,  168  Mo.  App.  365,  127  S.  W.  79. 

An  information  under  a  statute  making  it  an  offense  to 
issue  a  prescription  for  intoxicating  liquors  to  be  used  other- 
wise than  for  medicinal  purposes,  is  insufficient  as  not  con- 
necting its  issuance  with  the  purpose  of  the  liquor's  use; 
it  charging  merely  the  issuance  of  the  prescription  which 
is  set  out  and  constitutes  the  end  of  the  charge  against  the 
physician,  and  then  starting  off  with  a  separate  paragraph 
and  a  new  sentence,  to  the  effect  that  said  liquors  were  to 
be  used  otherwise  than  for  medicinal  purposes,  and  this  not 
charging  defendant  with  that  intent,  but  covering  only  the 
purpose  of  the  person  who  got  the  prescription. 
State  v.  Bradford  (Mo.  App.),  195  S.  W.  523. 

A  complaint  that  defendant  willfully  and  unlawfully  trans- 
ported intoxicating  liquors  sufficiently  charges  a  wrongful 
intent. 

Ex  parte  Ahart,  172  Cal.  762,  159  Pac.  106. 


240  TITLE  II— SEC.  32  OF  ACT 

See  McNeal  v.  State  (Okla.  Cr.  App.),  179  Pac.  943, 
944,  to  effect  that  it  is  not  necessary,  in  charging  un- 
lawful transportation  of  whisky,  to  allege  that  it  is 
being  conveyed  for  an  unlawful  purpose,  not  for  the 
proof  to  so  show. 

See  Maynes  v.  State,  6  Okla.  Cr.  App.  478,  119  Pac.  644. 

4.  REQUISITE  CERTAINTY. 

Indictments  for  the  sale  of  intoxicating  liquors  must  be 
drawn  with  such  a  degree  of  legal  certainty  as  to  identify 
the  particular  transaction  complained  of,  so  that  the  court 
*  may  judge  whether  the  facts  alleged  are  sufficient  to  inform 
the  accused  of  what  charge  he  is  called  on  to  meet,  and  to 
enable  him  to  plead  the  judgment  in  bar  of  a  second  prose- 
cution. 

State  v.  Muller,  80  Wash.  368,  141  Pac.  910. 

5.  CLERICAL  ERRORS  AND  VERBAL  INACCURACIES. 

An  indictment  charging  a  violation  of  the  law  prohibiting 
the  sale  of  intoxicating  liquors  in  prohibition  territory, 
omitting  the  letter  "i"  in  the  middle  of  the  v/ord  "intoxicat- 
ing," when  first  used,  held  not  open  to  attack. 

Bird  v.  State  (Tex.  Cr.  App.),  206  S.  W.  844. 

Where  an  information  charged  the  maintenance  of  a  nui- 
sance in  a  frame  building  on  a  location  sufficiently  described, 
and  an  amended  information  recited  that  the  nuisance  was 
maintained  in  a  concrete  building,  the  location  being  ex- 
actly the  same,  the  misdescription  of  the  materials  out  of 
which  the  building  was  constructed  did  not  prejudice  the  de- 
fendant's rights. 

State  v.  Berger,  97  Kan.  366,  155  Pac.  40. 

Sufficiency  of  Petition  for  Penalty. — A  petition  to  re- 
cover penalty  for  violation  of  a  statute  as  to  delivery  by 
carrier  of  intoxicating  liquors  in  prohibition  territory,  al- 
leging that  "law  prohibiting  sale  of  spirituous,  vinous  and 
malt"  was  in  force  at  time  and  place  of  alleged  delivery  is 
not  rendered  insufficient  by  omission  of  word  "liquors," 
when  context  enables  court  to  supply  it. 

Southern  Exp.  Co.  v.  Commonwealth,  177  Ky.  767,  198 
S.  W.  207. 


TITLE  II— SEC.  32  OF  ACT  241 

6.  SURPLUSAGE. 

Under  a  state  law  allowing  registered  druggists  to  sell  for 
certain  purposes,  allegations  in  an  information  charging  ac- 
cused with  being  a  registered  druggist  and  selling  for  a  pro- 
hibited purpose  may  be  rejected  as  surplusage,  since  they 
do  not  identify  the  crime. 

State  v.  Bartow,  95  Wash.  480,  164  Pac.  227. 

An  indictment  charging  that  accused  unlawfully  used  his 
dwelling  house  for  the  illegal  keeping  and  sale  of  intoxi- 
cants, and  that  the  place  was  one  where  intoxicants  were 
unlawfully  kept,  sold,  given  away,  drunk,  and  dispensed, 
charges  one  offense  only,  under  a  statute  declaring  unlawful 
places  used  for  the  illegal  sale  or  keeping  of  intoxicants  and 
places  where  intoxicants  are  illegally  kept,  sold,  given 
away,  or  dispensed;  the  latter  allegations  respecting  the 
place  being  properly  disregarded  as  surplusage,  if  indefi- 
nite. 

State  v.  Arsenault,  106  Me.  192,  76  Atl.  410. 

In  a  prosecution  for  retailing  liquor  without  a  license,  an 
affidavit  entitled,  "State  of  Louisiana  v.  J.  M.,"  and  charg- 
ing defendant  with  committing  the  offense  "in  violation  of 
the  law  and  against  the  peace  and  dignity  of  the  state  of 
Louisiana,"  was  not  insufficient,  though  on  a  printed  blank 
which  stated  in  the  printed  matter  that  the  offense  was  also 
in  violation  of  the  ordinance  of  a  city;  the  printed  state- 
ment being  merely  surplusage. 

State  v.  Maroun,  133  La.  1083,  63  So.  593. 

7.  STATUTORY  LANGUAGE. 

An  indictment  charging  in  the  form  prescribed  by  the 
statute  that  defendant  sold,  offered  for  sale,  kept  for  sale, 
or  otherwise  disposed  of  spirituous,  vinous,  or  malt  liquor 
contrary  to  law  is  sufficient. 

Spigener  v.  State,  11  Ala.  App.  296,  66  So.  896. 

Under  a  statute  providing  that  an  indictment  for  selling, 
offering  for  sale,  keeping  for  sale,  or  otherwise  disposing  of 
intoxicating  liquors  is  sufficient  is  charging  that  defendant 
kept,  sold,  or  disposed  of  the  liquor  contrary  to  law,  an  in- 

—16 


242  TITLE  II— SEC.  32  OF  ACT 

dictment  charging  the  sale  of  intoxicating  liquors  without  a 
license  or  contrary  to  local  regulations  is  sufficient ;  the  aver- 
ment as  to  license  being  rejected  as  surplusage  because,  un- 
der the  act  of  1909,  all  sales  of  intoxicating  liquor  were  in- 
hibited. 

Scott  v.  State,  3  Ala.  App.  142,  57  So.  413. 

In  another  case  decided  in  Georgia,  it  was  said:  "Since 
the  offense  charged  is  a  purely  statutory  offense  (Youmans 
v.  State,  7  Ga.  App.  101,  113,  66  S.  E.  383),  the  court  did 
not  err  in  overruling  the  demurrer  to  the  indictment  which 
alleged  a  violation  of  section  434  of  the  Penal  Code  of  1910, 
in  the  terms  and  language  of  the  Code,  and  so  plainly  that 
the  nature  of  the  offense  charged  could  be  easily  understood 
by  the  jury.  Pen.  Code  1910,  954;  Ricks  v.  State,  16  Ga. 
600.  See  in  this  connection  Rose  v.  State,  1  Ga.  App.  5%,  58 
S.  E.  20.  It  is  unnecessary  to  allege  the  name  of  the  agent 
through  when,  or  the  agency  by  which,  or  the  manner  in 
which  the  solicitation  is  accomplished,  and  the  connection  of 
the  defendant  with  the  solicitation  or  its  subsequent  ratifica- 
tion by  him  is  a  matter  for  proof.  In  Loeb  v.  State,  75  Ga. 
258,  an  indictment  for  the  analogous  offense  of  furnishing 
liquor  to  a  minor  through  a  sale  by  a  clerk  of  the  defendant 
was  upheld,  though  the  name  of  the  clerk  or  agent  was  not 
stated.  It  is  immaterial  whether  or  not  the  allegations  in 
the  indictment  referring  to  the  United  States  mail  and  the 
Southern  Express  Company  as  agencies  by  and  through 
which  the  defendant  solicited  the  sale  of  liquors,  were  spe- 
cific, since  'allegations  in  an  indictment  which  are  too  gen- 
eral and  indefinite  to  set  forth  a  crime  may  be  treated  as 
surplusage  if  there  are  other  averments  in  the  indictment 
which  sufficiently  allege  the  commission  of  an  offense.'  Els- 
bery  v.  State,  12  Ga.  App.  86,  76  S.  E.  779.  It  was  unnec- 
essary to  add  in  the  present  indictment,  by  and  through  the 
United  States  mails  and  by  and  through  the  Southern  Ex- 
press Company,  under  the  ruling  by  this  court  in  Rose  v. 
State,  4  Ga.  App.  588,  62  S.  E.  117,  that  the  words  person- 
ally in  section  434  would  cover  solicitation  through  the  mails 
or  through  an  express  company.  The  effect  of  section  434 
(Acts  1897,  p.  39)  is  to  extend  the  act  of  1893,  p.  115,  so  far 
as  soliciting  is  concerned,  and  its  clear  meaning  is  that  the 
person  who  sells  intoxicating  liquors  or  solicits  their  sale  in 


TITLE  II— SEC.  32  OF  ACT  243 

any  county  of  this  state,  shall  be  responsible,  whether  the 
act  is  committed  by  himself  individually,  or  by  any  person 
who  is  his  agent,  it  matters  not  what  may  be  the  means  em- 
ployed by  either  to  effect  the  illegal  solicitation.  Rose  v 
State,  4  Ga.  App.  588,  595,  62  S.  E.  117." 

Cashin  v.  State,  18  Ga.  App.  87,  88  S.  E.  996. 

Where  no  form  is  provided  by  statute  for  an  indictment 
under  a  statute  making  it  unlawful  to  have  in  possession, 
etc.,  more  than  a  certain  quantity  of  named  kinds  of  liquor, 
the  indictment  must  follow  the  language  or  substantially  the 
language  of  the  section. 

Holt  v.  State  (Ala.),  78  So.  315. 

An  indictment  in  the  form  prescribed  in  a  statute  charg- 
ing the  accused  with  carrying  on  the  business  of  a  dealer  in 
liquors,  is  not  fatally  defective  if  it  fails  to  charge  that  he 
sold,  or  caused  to  be  sold,  spirituous,  vinous,  or  malt  liquor. 

Wilkins  v.  State  (Fla.),  78  So.  523. 

Under  a  statute  declaring  that  all  places  used  for  the  il- 
legal sale  of  intoxicating  liquors,  etc.,  are  common  nuisances, 
an  indictment,  charging  that  accused  did  maintain  a  build- 
ing which  was  used  for  the  sale  of  intoxicating  liquors,  etc., 
is  not  defective  because  of  failure  to  allege  that  it  was  per- 
sonally used  by  accused ;  the  charge  in  the  terms  of  the  stat- 
ute being  sufficient. 

State  v.  Trowbridge,  112  Me.  16,  90  Atl.  494. 

Under  a  statute  prohibiting  the  sale  of  any  intoxicating 
liquor,  an  information,  charging  that  defendant  did  unlaw- 
fully sell  one  bottle  of  spirituous  intoxicating  liquor  which 
intoxicating  liquor  so  sold  was  capable  of  being  used  as  a 
beverage,  being  substantially  in  the  language  of  the  statute, 
was  sufficient  in  view  of  that  section  defining  the  phrase  "in- 
toxicating liquor"  to  include  whisky,  brandy,  gin,  wine,  ale, 
beer,  and  any  spirituous  liquor. 

State  v.  Sullivan,  97  Wash.  639,  166  Pac.  1123. 

An  indictment,  which  alleges  the  possession  of  a  quantity 
of  intoxicating  liquors  by  the  defendant,  is  not  subject  to 
demurrer  upon  the  ground  that  it  charges  no  offense,  and 


244  TITLE  II— SEC.  32  OF  ACT 

that  it  does  not  set  out  the  amount  of  liquor  in  defendant's 
possession. 

Harris  v.  State,  21  Ga.  App.  796,  95  S.  E.  321. 

An  indictment  charging  in  the  language  of  the  statute, 
that  accused  received  for  storage,  distribution,  or  on  con- 
signment for  another  alcoholic  liquors,  held  not  void  for  du- 
plicity or  uncertainty. 

Rogers  v.  State,  133  Ark.  85,  201  S.  W.  845. 

Under  the  express  provision  of  the  Alabama  Code  1907, 
7353,  an  indictment  is  sufficient  to  charge  a  violation  of  the 
prohibition  law  which  charges  that  accused  sold  liquors  with- 
out a  license  and  contrary  to  law. 

Kelley  v.  State,  171  Ala.  44,  55  So.  141. 

An  indictment  for  violating  the  Virginia  prohibition  act 
(Laws  1916,  c.  146)  reciting  that  accused  "within  one  year 
next  prior  to  the  finding  of  this  indictment  and  subsequent 
to  the  1st  day  of  November  1916,  in  said  City  of  Norfolk, 
did  unlawfully  manufacture,  sell,  offer,  keep,  store,  and  ex- 
pose for  sale,  give  away,  dispense,  solicit,  advertise  and  re- 
ceive orders  for  ardent  spirits  against  the  peace  and  dig- 
nity of  the  commonwealth,"  was  not  subject  to  demurrer, 
under  Const,  art.  1,  8  as  not  sufficient  to  inform  defendant 
of  the  cause  and  nature  of  the  accusation,  or  as  tending  to 
deprive  her  of  liberty  and  property  without  due  process  of 
law,  in  violation  of  Const.  U.  S.  Amend.  14,  1,  in  view  of 
the  right  of  accused  to  obtain  a  bill  of  particulars. 

Wilkerson  v.  Commonwealth,  122  Va.  920,  95  S.  E.  388. 

An  information  that  defendant,  on  the  7th  of  January, 
1918,  being  in  the  county  of  Walla  Walla,  unlawfully  had 
in  possession  five  5-gallon  barrels  of  whisky,  contrary  to 
the  statute,  etc.,  being  in  almost  the  exact  language  of  the 
statute,  sufficiently  charged  violation  of  Rem.  Code,  1915, 
§  6262 — 22,  by  possession  of  an  excess  quantity  for  illegal 
disposition,  though  not  charging  the  excess  quantity  was 
held  for  sale  or  unlawful  disposition. 

State  v.  Bachtold  (Wash.),  180  Pac.  896. 

An  information  for  violation  of  the  Colorado  Liquor  Law, 
§  1,  charging  that  defendant,  on  a  given  date  in  a  given 


TITLE  II— SEC.  32  OF  ACT  245 

county,  "did  unlawfully  import  into  the  state"  intoxicating 
liquor,  being  substantially  in  the  language  of  the  statute, 
held  to  charge  the  offense  with  sufficient  certainty. 
Balfe  v.  People  (Colo.),  179  Pac.  137. 

Particulars  Necessary. — In  charge  for  manufacturing 
spirituous  liquors,  which  testimony  tends  to  prove,  it  is  not 
sufficient  to  set  forth  such  offense  in  words  of  statute,  with- 
out allegations  of  particulars  of  the  alleged  offense  or  the 
manner  or  mode  of  manufacture. 

Cole  v.  State  (Okla.  Cr.  App.),  180  Pac.  713. 

In  view  of  Pen.  Code  1913,  §§  934,  936,  938,  939,  943, 
and  Const,  art.  2,  §  24,  an  information  charging  that  accused, 
"on  or  about  the  27th  day  of  December,  1918,  at  and  in  the 
county  of  Y.,  state  of  A.,  did  then  and  there  willfully  and 
unlawfully  give,  sell,  and  dispose  of  intoxicating  liquor  to 
another,  contrary,"  etc.,  was  fatally  defective,  in  that  it  did 
not  contain  a  statement  of  the  acts  constituting  the  offense 
in  ordinary  and  concise  language,  notwithstanding  the  rule 
as  to  the  sufficiency  of  charging  offense  in  the  language  of 
the  statute. 

Earp  -u.  State  (Ariz.),  184  Pac.  942. 

Averment  That  Act  Was  Contrary  to  Law. — The  fact 
that  form  79,  as  set  out  in  the  Alabama  Code  of  1896,  sug- 
gests two  different  forms,  does  not  dispense  with  the  ne- 
cessity for  the  material  averment  that  the  sale  was  contrary 
to  law. 

Smith  v.  State,  155  Ala.  102,  46  So.  753. 

See  Sills  v.  State,  76  Ala.  92. 

Averment  as  to  Kind  of  Liquor. — An  indictment 
charging  in  separate  counts  that  accused  unlawfully  dis- 
posed of  spirituous  liquors,  fermented  liquors,  and  intoxi- 
cating drink,  being  in  the  words  of  the  statute,  was  suffi- 
cient, it  not  being  necessary  under  the  Code  to  specify  the 
particular  variety  of  liquor  sold  and  disposed  of. 
Curry  v.  State,  117  Md.  587,  83  Atl.  1030. 

Averment  That  Liquor  Was  Intoxicating.— An  in- 
dictment in  the  form  prescribed  by  statute  charging  the  ac- 


246  TITLE  II— SEC.  32  OF  ACT 

cused  with  carrying  on  the  business  of  a  dealer  in  liquors, 
need  not  allege  in  terms  that  the  liquors  were  intoxicating. 
Ladson  v.  State,  56  Fla.  54,  47  So.  517. 

Name  of  Vendee. — An  indictment,  charging  the  unlaw- 
ful sale  of  intoxicants  substantially  in  the  language  of  the 
statute,  and  so  as  to  enable  a  person  of  common  understand- 
ing to  know  what  was  intended,  the  accused  what  he  was 
called  upon  to  answer,  and  with  sufficient  certainty  to  enable 
the  court  to  pronounce  judgment,  on  conviction,  according  to 
the  right  of  the  case,  was  sufficient,  though  not  alleging  the 
name  of  the  person  to  whom  the  liquor  was  sold. 
McNeil  v.  State,  125  Ark.  47,  187  S.  W.  1060. 

Conviction  of  Offense  Not  Charged  Improper. — Un- 
der statute  providing  that  an  indictment  for  any  first  offense 
under  sections  3,  4,  or  5  of  the  act  shall  be  sufficient  if  sub- 
stantially in  the  form  or  to  the  effect  set  forth  in  those  sec- 
tions, where  an  indictment  charged  the  keeping  of  intoxi- 
cating liquors  in  violation  of  section  3  no  conviction  could 
be  had  under  section  17,  making  it  unlawful  to  keep  ardent 
spirits  in  a  house  of  ill  repute. 

Lane  v.  Commonwealth,  122  Va.  916,  95  S.  E.  466. 

See  also  post,  "Variance,"  I,  B,  11. 

8.  BILL  OF  PARTICULARS. 

i 

In  a  prosecution  for  engaging  in  the  retail  liquor  business 
without  having  paid  the  tax  required,  refusal  of  bill  of  par- 
ticulars, allowance  of  testimony  for  the  government  of  wit- 
nesses whose  names  were  not  indorsed  upon  the  indictment, 
and  the  scope  of  the  opportunity  allowing  defendants  to 
meet  such  unexpected  proof,  are  matters  resting  in  the  dis- 
cretion of  the  trial  court. 

Mayer  v.  United  States  (C.  C.  A.),  259  Fed.  216. 

Where  an  indictment  alleged  a  sale  of  whisky  on  a  cer- 
tain date  in  the  town  of  P.  defendant  is  not  entitled  to  a 
bill  of  particulars  as  to  the  house,  square,  street,  or  section 
of  the  town,  where  the  sale  took  place;  defendant  claiming 
that  he  made  no  sale  at  all. 

State  v.  Doucet,  136  La.  180,  66  So.  772. 


TITLE  II— SEC.  32  OF  ACT  247 

Where  the  motion  for  a  bill  of  particulars  is  not  accom- 
panied by  an  affidavit  showing  the  information  desired  and 
the  need  of  it  for  the  purposes  of  defense,  and  the  prosecut- 
ing attorney,  before  commencement  of  the  trial,  pursuant  to 
court  direction,  designates  upon  the  record  the  names  of  the 
persons  for  whom  the  evidence  for  the  state  and  the  ad- 
missions of  defendant  show  the  liquors  were  unlawfully 
carried,  denial  of  the  motion  will  not  be  deemed  prejudicial 
error  in  the  appellate  court. 

State  v.  Duff,  81  W.  Va.  407,  94  S.  E.  498. 

"Neither  was  there  any  error  in  refusing  to  compel  the 
attorney  for  the  commonwealth  to  furnish  a  better  bill  of 
particulars.  Each  count  of  the  indictment  gave  the  date 
when  the  offense  was  alleged  to  have  been  committed,  and 
the  city  of  Richmond  as  the  point  to  which  the  ardent  spirits 
were  transported,  and  that  was  all  the  information  needed 
to  enable  the  defendant  to  concert  his  defense.  The  offense 
charged  was  not  one  likely  to  be  committed  in  public,  and  the 
place  from  which  the  spirits  were  transported  was  prob- 
ably unknown  to  the  grand  jury.  To  require  its  allegation 
and  proof  would  be  of  no  assistance  to  the  defendant,  and 
would,  in  many  cases,  defeat  the  object  of  the  statute.  The 
indictment  sufficiently  informed  the  defendant  of  'the  cause 
and  nature  of  his  accusation.'  " 

Sickel  v.  Commonwealth  (Va.),  97  S.  E.  783. 

9.  NEGATIVE  AVERMENTS. 

An  indictment  charging  accused  with  pursuing  the  busi- 
ness of  selling  intoxicating  liquors  in  local  option  territory 
need  not  negative  the  exceptions  in  the  statute. 

Jones  v.  State,  76  Tex.  Cr.  App.  239,  174  S.  W.  349. 
See  also,  Winfrey  v.  State,  133  Ark.  357,  202  S.  W.  23, 
as  to  exception   for  sacramental  or  medicinal  pur- 
poses. 

An  indictment  charging  the  violation  of  the  state  prohibi- 
tion law  need  not  negative  the  exception  in  the  statute  which 
allows  the  sale  of  pure  alcohol  under  certain  prescribed  cir- 
cumstances. 

McAdams  v.  State,  9  Ga.  App.  166,  70  S.  E.  893. 


248  TITLE  II— SEC.  32  OF  ACT 

"In  a  prosecution  under  chapter  187,  (Nebraska)  Laws 
1917,  for  having  possession  of  intoxicating  liquor,  the  in- 
formation need  not  negative  the  exceptions  under  which  its 
possession  may  be  lawful,  but  these  are  available  in  de- 
fense." 

Fitch  v.  State  (Neb.),  167  N.  W.  417. 

Where  the  Constitution  prohibiting  the  bringing  into  the 
state  of  intoxicating  liquors,  does  not  specifically  except  in- 
toxicants intended  for  personal  use,  though  the  bringing  of 
such  liquors  is  not  an  offense,  an  information  charging  the 
bringing  into  the  state  of  intoxicants  need  not  negative  that 
they  were  intended  for  personal  use;  that  being  a  matter  of 
defense  to  be  urged. 

Sturgeon  v.  State,  17  Ariz.  513,  164  Pac.  1050,  L.  R.  A. 
1917B,  1230. 

When  a  statute  has  reference  only  to  receipt  of  liquor  by 
transportation,  exceptions  in  other  sections  have  no  applica- 
tion to  the  offense  created,  and  need  not  be  negatived  in  in- 
dictment. 

Cochran  v.  Commonwealth,  122  Va.  801,  94  S.  E.  329. 

That  Transportation  Is  Not  Interstate. — An  indict- 
ment alleging  that  accused,  a  private  person,  unlawfully 
transported  and  delivered  intoxicating  liquor  to  a  person 
named  in  a  county  which  had  adopted  prohibition,  need  not 
allege  whether  the  transportation  was  interstate  or  intra- 
state,  where  the  Act  relates  to  intrastate  transactions,  and 
section  12  thereof  declares  that  it  shall  not  be  necessary  to 
negative  exceptions,  but  the  same  shall  be  available  as  purely 
defensive  matter. 

Longmire  v.  State,  75  Tex.  Cr.  App.  616,  171  S.  W. 
1165,  L.  R.  A.  1917 A,  726. 

Exception  in  Favor  of  Druggist  or  Registered 
Pharmacist. — "In  an  information  charging  the  violation  of 
section  1  of  the  (Kansas)  'Bone-Dry  Law'  (Laws  1917,  c. 
215)  making  it  unlawful  'for  any  person  to  keep  or  have  in 
his  possession  any  intoxicating  liquors  *  *  *  or  to  give 
away  or  furnish  intoxicating  liquors  to  another,  except  drug- 
gists or  registered  pharmacists  as  hereinafter  provided,'  it 


TITLE  II— SEC.  32  OF  ACT  249 

is  not  necessary  to  allege  that  the  defendant  was  not  a  drug- 
gist or  registered  pharmacist." 

State  v.  Perello,  102  Kan.  695,  171  Pac.  630. 

See  also,  State  v.  Bartow,  95  Wash.  480,  164  Pac.  227. 

The  exception  declaring  it  unlawful  for  any  one  "other 
than  druggists  and  medical  depositories"  to  engage  in  the 
business  of  selling  liquor,  forming  no  portion  of  the  descrip- 
tion of  the  offense,  a  warrant  charging  one  with  engaging  in 
the  business  of  selling  liquor  need  not  negative  his  being 
within  the  exception. 

State  v.  Moore,  166  N.  C.  284,  81  S.  E.  294. 
State  v.  Wainscott,  169  N.  C.  379,  85  S.  E.  380. 

Sales  to  Soldiers  in  Uniform — Exceptions. — An  in- 
dictment charging  the  unlawful  selling  of  intoxicating  liq- 
uor to  soldiers  in  uniform,  in  violation  of  Act  May  18,  1917, 
c.  15,  §  12,  40  Stat.  76,  declaring  that  it  shall  be  unlawful  to 
sell  any  intoxicating  liquor  to  any  officer  or  member  of  the 
military  forces  while  in  uniform,  except  as  herein  provided, 
is  sufficient,  though  it  did  not  negative  the  exceptions  which 
the  Secretary  of  War  is  authorized  to  prescribe  as  to  the 
sale  of  liquor  at  any  military  station,  etc.,  for  medicinal  pur- 
poses ;  it  appearing  that  the  sales  were  made  outside  of  any 
military  reservation  over  which  the  Secretary  of  War  has 
jurisdiction,  and  it  not  being  shown  that  any  exceptions  had 
been  prescribed. 

Young  v.  United  States,  162  C.  C.  A.  133,  249  Fed.  935. 

Exceptions  to  Reed  Amendment. — An  indictment  for 
violation  of  Act  March  3,  1917,  §  5,  known  as  the  Reed 
Amendment  (Comp.  St.  1918,  §  8739a),  making  it  an  offense 
to  "cause  intoxicating  liquors  to  be  transported  in  interstate 
commerce,  except  for  scientific,  sacramental,  medicinal  or 
mechanical  purposes,"  into  a  prohibition  state,  need  not  neg- 
ative the  excepted  uses,  which  is  matter  of  defense. 

United  States  v.  Simpson  (D.  C.),  257  Fed.  860. 

It  was  held  otherwise,  however,  in  Sickel  v.  Common- 
wealth (Va.),  99  S.  E.  678. 


250  TITLE  II— SEC.  32  OF  Act 

10.  MISJOINDER,  DUPLICITY,  MULTIFARIOUSNESS,  ETC. 

Two  Offenses  in  Same  Indictment. — The  Arkansas 
statute  does  not  except  offenses  against  the  liquor  laws  from 
the  general  rule  forbidding  two  or  more  offenses  to  be 
charged  in  one  indictment. 

Chronister  v.  State  (Ark.),  215  S.  W.  634. 

Joinder  of  Different  Offenses  in  Different  Counts — 
Misdemeanors. — It  was  proper  for  the  state  to  charge  the 
accused  with  conducting  a  grogshop,  because  he  had  made  a 
sale  of  liquor,  and  then  to  charge  him  in  the  second  count, 
with  the  unlawful  sale  of  the  liquor,  so  that  if  he  failed  to 
prove  the  first  count,  it  could  fall  back  on  the  second.  As 
the  offense  charged  was  misdemeanor,  it  was  not  an  im- 
proper cumulation  of  offenses. 

State  v.  John,  129  La.  208,  55  So.  766. 

Where  an  indictment  for  violating  the  prohibition  law 
charged  accused  in  one  count  with  making  an  unlawful  sale, 
and  in  another  count  with  selling,  offering  for  sale,  keeping 
for  sale  or  otherwise  disposing  of  intoxicating  liquors,  proof 
of  two  different  sales  within  the  punishable  period  was  prop- 
erly admitted  in  view  of  a  statute  providing  that  indictments 
may  act  out  several  charges  in  separate  counts,  and  that  ac- 
cused may  be  convicted  and  punished  upon  each  count  as 
upon  separate  indictments. 

Shivers  v.  State,  7  Ala.  App.  110,  61  So.  467. 

An  affidavit  may  in  separate  counts  charge  that  accused 
was  guilty  of  the  unlawful  sale  of  intoxicants,  and  that  he 
kept  a  place  where  intoxicants  were  unlawfully  sold. 

Rash  v.  State,  13  Ala.  App.  262,  69  So.  239. 

Under  Rev.  St.  §  1024  (Comp.  St.  §  1690),  a  count  for 
unlawfully  carrying  liquor  into  the  Indian  country  and  one 
for  there  having  it  in  his  possession  may  be  joined  in  the 
same  indictment. 

United  States  v.  Luther  (D.  C.),  260  Fed.  579. 

Joinder  in  Same  Count  Conjunctively. — \Yhere 
several  offenses  are  embraced  in  the  same  general  statu- 


TITLE  II— SEC.  32  OF  ACT  251 

tory  definition,  and  are  punishable  in  the  same  manner 
they  are  distinct  offenses,  and  may  be  charged  conjunc- 
tively in  the  same  count,  and  a  conviction  may  be  had  on 
proving  the  commission  of  the  offense  in  any  of  the  ways 
alleged. 

Johnson  v.  State,  75  Tex.  Cr.  App.  177,  171  S.  W.  211. 

State  v.  Sarlin  (Ind.),  123  N.  E.  800. 

An  indictment  is  not  defective  because  it  charges  two 
offenses  conjunctively,  but  the  proper  mode  to  raise  the  ques- 
tion that  more  than  one  offense  is  charged,  is  to  require  the 
state  to  elect. 

Gramlich  v.  State,  135  Ark.  243,  204  S.  W.  848. 

An  indictment  charging  conjunctively  a  violation  of  an 
Act,  making  it  unlawful  except  as  otherwise  provided  for 
any  person  to  ship,  transport,  carry  or  deliver  intoxicating 
liquor  to  any  other  person  in  prohibition  territory,  charges 
but  one  offense  committed  in  any  one  of  the  ways  specified. 

Johnson  v.  State,  75  Tex.  Cr.  App.  177,  171  S.  W.  211. 

Under  a  statute  providing  that  no  person  shall  sell,  "or" 
keep  for  sale,  intoxicating  liquor,  an  information  may  prop- 
erly charge  defendant  with  selling  "and"  keeping  for  sale. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

An  indictment  charging  a  violation  of  a  statute  which 
used  the  words,  "transport  into"  and  "deliver"  conjunctively, 
sufficiently  charged  that  the  transportation  and  delivery  was 
to  some  other  person,  firm,  or  corporation,  the  word  "de- 
liver" used  conjunctively  with  "transport,"  necessarily  im- 
plying a  transfer  of  possession  to  some  other  entity,  meaning 
to  yield  possession  of,  to  hand  over,  or  to  surrender. 

Winfrey  v.  State,  133  Ark.  357,  202  S.  W.  23. 

Joinder  in  One  Count. — The  sale  and  manufacture  of 
intoxicating  liquors  may  be  charged  in  the  same  count  of 
the  indictment. 

McAdams  v.  State,  9  Ga.  App.  166,  70  S.  E.  893. 

The  sale  and  the  manufacture  of  intoxicating  liquors  may 
be  alleged  in  one  count  in  an  indictment,  and  proof  of  either 


252  TITLE  II— SEC.  32  OP  ACT 

crime  charged  in  such  count  will  be  sufficient  to  support  a 
general  verdict  of  guilty. 

McAdams  v.  State,  9  Ga.  App.  166,  70  S.  E.  893. 
Southern  Exp.  Co.  v.  State,  1  Ga.  App.  700,  58  S.  E.  67. 
Jones  v.  State,  12  Ga.  App.  564,  77  S.  E.  892. 

A  statute  providing  the  form  of  an  indictment  for  viola- 
tion of  the  prohibition  law  and  permitting  a  number  of  of- 
fenses against  the  law  to  be  charged  in  one  count,  is  valid. 
Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652,  653. 

Charging  in  Disjunctive  or  Alternative. — Counts  of  an 
affidavit  for  violation  of  the  prohibition  law,  charging  in  the 
alternative  the  doing  of  various  things  contrary  to  law,  com- 
plying with  the  requirement  of  the  statute,  are  sufficient. 
Dees  v.  State  (Ala.  App.),  75  So.  645. 

An  indictment  charging  that  defendant  sold,  offered  for 
sale,  gave  away  or  otherwise  disposed  of  spirituous,  vinous, 
and  malt  liquors,  is  not  demurrable. 

Cunningham  v.  State  (Ala.  App.),  75  So.  816. 

In  a  prosecution  for  keeping  and  selling  intoxicating  liq- 
uors, the  state  may  charge  the  defendant  with  the  commis- 
sion of  more  than  one  offense  in  the  alternative,  leaving  it 
to  the  jury  to  determine  under  all  the  evidence  of  which  spe- 
cific offense  charged,  if  any,  the  defendant  is  guilty,  so  that, 
where  accused  was  charged  with  selling,  offering  for  sale, 
keeping  for  sale,  or  othenvise  disposing  of,  spirituous  liq- 
uors, contrary  to  law,  the  state  was  not  required  to  elect  on 
which  charge  it  would  rely  for  a  conviction. 

Allison  -v.  State,  1  Ala.  App.  206,  55  So.  453. 

Under  a  statute  making  it  an  offense  to  "sell  or  give"  in- 
toxicating liquor,  an  information,  charging  that  defendant 
did  "sell  and  give"  intoxicating  liquors  to  the  person  named, 
charges  but  one  offense. 

State  v.  Laymon  (S.  D.),  167  N.  W.  402. 

Same;  Contrary  View. — The  Indiana  court  says:  "It 
has  been  decided  many  times  that  it  is  sufficient  to  charge  a 
crime  in  the  language  of  the  statute,  but  this  statement  of 
the  law  should  not  be  taken  literally.  This  does  not  mean 


TITLE  II— SEC.  32  OF  ACT  253 

that  disjunctives  in  the  statute  may  be  used.  The  meaning 
of  the  statute  must  be  gathered  and  the  substantive  words  or 
their  equivalents  used.  It  has  been  repeatedly  held  by  this 
court  that,  where  a  statute  declares  that  it  shall  be  unlawful 
for  a  person  to  do  this,  or  that,  or  that,  it  is  sufficient  to 
charge  the  several  acts  conjunctively,  but  it  is  not  sufficient 
to  charge  them  disjunctively  because  this  rendered  the  plead- 
ing uncertain.  The  defendant  has  a  right  to  a  direct  and 
positive  charge  in  order  that  he  may  plead  and  defend. 
Where  a  statute,  as  here,  declares  it  unlawful  'to  keep  in- 
toxicating liquor  with  the  intent  to  sell,  barter,  exchange, 
give  away,  furnish  or  otherwise  dispose  of  the  same/  it  is 
proper  to  charge  that  one  did  unlawfully  keep  with  the  in- 
tent to  sell,  barter,  exchange,  give  away,  furnish,  'and'  other- 
wise dispose  of  the  same.  That  is  to  say,  the  state  may 
charge  conjunctively  all  of  the  acts  following  the  intent. 
Davis  v.  State,  100  Ind.  154;  State  r.  Stout,  112  Ind.  245,  13 
N.  E.  715;  Fahnestock  v.  State,  102  Ind.  156,  1  N.  E.  372; 
Regadanz  v.  State,  171  Ind.  387,  391,  86  N.  E.  449." 

State  v.  Sarlin  (Ind.),  123  N.  E.  800. 

Where  a  statute  declares  it  unlawful  "to  keep  intoxicating 
liquor  with  intent  to  sell,  barter,  exchange,  give  away,  fur- 
nish or  otherwise  dispose  of  the  same,"  it  is  proper  to 
charge  that  one  did  unlawfully  keep  with  "intent  to  sell, 
*  *  *  furnish  and  otherwise  dispose  of  the  same,"  but  not 
to  charge  disjunctively. 

State  v.  Sarlin  (Ind.),  123  N.  E.  800. 

An  indictment  for  the  unlawful  possession  of  intoxicating 
liquors,  as  defined  by  Burns'  Ann.  St.  Supp.  1918,  §  8356d, 
with  intent  to  unlawfully  sell  or  dispose  of  the  same,  is  de- 
fective for  uncertainty,  where  the  several  purposes  for 
which  the  liquors  were  kept  are  joined  by  the  disjunctive 
"or,"  instead  of  the  conjunctive  "and." 

Young  v.  State  (Ind.),  124  N.  E.  679. 
State  v.  Sarlin  (Ind.),  123  N.  E.  800. 

An  affidavit  or  indictment  under  Burns'  Ann.  St.  Supp, 
1918,  §  8356d,  for  unlawful  keeping  of  intoxicating  liquor 
with  intent  to  sell,  etc.,  which  ends  with  the  words  "or  use," 
tends  to  show  innocence  and  is  vitiated  thereby,  and  such 


254  TITLE  II— SEC.  32  OF  ACT 

words  cannot  be  treated  as  surplusage,  and  such  affidavit 
was  properly  quashed  under  provision  of  Burns'  Ann.  St. 
1914,  §  2065,  subd.  3. 

State  v.  Sarlin  (Ind.),  123  N.  E.  800. 

An  information  charging  that  defendant  did  willfully  and 
intentionally  manufacture  certain  spirituous,  vinous,  fer- 
mented, or  malt  liquors,  or  an  imitation  or  substitute  there- 
for, is  bad  for  duplicity. 

Cole  v.  State  (Okla.  Cr.  App.),  180  Pac.  713. 

Charging  Offense  in  Different  Places. — In  a  Dela- 
ware case  it  was  said :  "The  contention  of  defendant's 
counsel  is  that  the  allegation  that  the  sale  was  had  in  'the 
store  or  warehouse'  of  defendant  is  in  the  alternative  and 
implies  that  he  sold  in  two  places.  The  court  is  of  opinion 
that  to  charge  a  sale  in  more  than  one  place  in  a  single  count 
would  be  fatally  defective,  but  it  appears  by  the  language 
used  that  it  was  intended  to  charge  the  defendant  with  a 
sale  at  a  single  place,  known  as  the  store  or  warehouse,  and 
if  there  is  any  repugnancy  in  the  indictment  it  can  only  show 
as  a  variance  after  the  trial  of  the  case." 
State  v.  Li  Fieri  (Del.),  102  Atl.  77. 

Charging  in  Alternative — In  Different  Counts. — The 

rules  permitting  double  and  alternative  allegations  in  indict- 
ment do  not  apply  to  indictments  for  violation  of  the  pro- 
hibition laws  where  the  offenses  are  charged  in  separate 
counts. 

Herring  v.  State  (Ala.  App.),  75  So.  646. 

Charging  Same  Offense  in  Different  Counts  in  Dif- 
ferent Ways. — "The  words,  'whether  intended  for  personal 
use  or  otherwise,'  are  exclusive,  and  no  matter  for  what  pur- 
pose intended,  it  is  unlawful  for  any  person  to  'have,  con- 
trol or  possess'  any  of  the  liquors  enumerated  in  said  section : 
'and,  where  an  indictment  charges  that  such  liquors  were 
kept  for  sale,'  the  words  'for  sale'  may  be  stricken  as  imma- 
terial, as  they  are  not  'descriptive  of  the  identity  of  that 
which  is  legally  essential  to  the  claim  of  charge.'  This  be- 
ing true,  the  two  counts  of  the  indictment  were  practically 
the  same.  Under  the  present  prohibition  laws  of  this  state 


TITLE  II— SEC.  32  OF  ACT  255 

there  is  no  independent  crime  of  keeping  for  sale  intoxicat- 
ing liquors,  as  separate  and  distinct  from  the  crime  of  hav- 
ing, controlling,  and  possessing  such  liquors.  From  the 
above  it  will  be  seen  that  the  two  counts  under  which  the 
defendant  was  tried,  charged  the  commission  of  one  offense 
in  two  different  ways." 

Corley  v.  State  (Ga.  App.),  98  S.  E.  401,  402. 

Charging  Same  Sale  to  Different  Persons.— An  in- 
dictment for  pursuing  the  occupation  of  selling  intoxicating 
liquors  in  prohibition  territory,  which,  after  alleging  that 
defendant  unlawfully  engaged  in  and  pursued  the  business, 
alleged  that  he  did  then  and  there  sell  to  J.  H.,  R.  B.  and 
J.  B.,  intoxicating  liquors,  did  not  allege  a  sale  jointly 
to  the  persons  named,  but  that  the  sales  were  made  to  each 
of  them. 

Vance  v.  State,  80  Tex.  Cr.  App.  177,  190  S.  W.  176. 

A  count  in  an  information  that  accused  sold  intoxicating 
liquors  to  three  persons  named  therein  imports  a  sale  at  the 
same  time  to  such  persons,  and  is  not  duplicitous. 
Ray  v.  State  (Del.),  100  Atl.  472. 

New  Offense  Added  on  Appeal. — Where  defendant, 
after  conviction  in  the  county  court  on  a  charge  that  he  sold, 
offered  for  sale,  kept  for  sale,  or  otherwise  disposed  of  spir- 
ituous, vinous,  or  malt  liquors  contrary  to  law,  appealed  to 
the  circuit  court  and  was  there  tried  on  a  complaint  filed, 
charging  him  not  only  as  charged  in  the  original  affidavit, 
but  also  with  having  in  his  possession  spirituous  liquor  con- 
trary to  law,  the  added  charge  set  forth  a  distinct  offense 
from  that  contained  in  the  original  affidavit,  and  should  have 
been  stricken  on  defendant's  motion. 
Echols  v.  State  (Ala.),  75  So.  814. 

Charging  as  Principal  and  Accessory. — A  count 
charging  defendant  with  an  unlawful  sale  of  intoxicating 
liquors,  and  with  having  been  an  accessory  to  such  a  sale,  is 
not  bad  as  charging  the  two  offenses  of  being  principal  and 
of  being  accessory,  despite  the  erroneous  characterization  of 
the  method  of  committing  the  offense  as  accessory  before 
the  fact. 

Harris  v.  State  (Ark.),  215  S.  \Y.  620. 


256  TITLE  II— SEC.  32  OF  ACT 

Joinder  of  Defendants  in  Indictment. — Members  of  a 
lodge,  which  maintains  clubrooms  in  which  liquors  are  sold 
to  members,  and  the  barkeeper  making  the  sale,  who  is  not  a 
member  of  the  lodge,  may  be  legally  joined  in  one  count  for 
violation  of  a  law  prohibiting  maintaining  of  any  clubroom 
for  purpose  of  selling  or  furnishing  intoxicating  liquors. 
Hawkins  v.  State  (Okla.  Cr.  App.),  182  Pac.  732. 

Where  an  indictment  against  two  persons  charges  that  the 
said  persons,  naming  them,  did  "then  and  there  unlawfully 
and  with  force  and  arms  have,  possess,  and  control  certain 
alcoholic,  spirituous,  malt,  and  intoxicating  liquors,"  either 
one  or  both  of  them  may  be  convicted,  according  as  the  evi- 
dence may  show  either  one  or  both  guilty.  Having  and  pos- 
sessing intoxicating  liquor  is  not  a  joint  offense,  like  riot, 
and  the  indictment  in  this  case  is  "joint  and  several." 
Page  v.  State  (Ga.  App.),  99  S.  E.  55. 

11.  AVERMENTS  OF  PLACE. 

"In  a  prosecution  for  the  sale  of  liquor  it  is  not  necessary 
to  set  forth  in  the  indictment  the  precise  locality  at  which 
the  alleged  sale  was  consummated,  or  to  do  more  than  show 
that  it  was  within  the  jurisdiction  of  the  court." 

Pines  v.  State,  15  Ga.  App.  348,  83  S.  E.  198. 

See  also,  Donovan  v.  State,  170  Ind.  123,  83  N.  E.  744. 

Rigrish  v.  State,  178  Ind.  470,  99  N.  E.  786. 

Haymond  v.  State  (Ind.),  119  N.  E.  5,  6. 

A  complaint  alleging  that  at  a  particular  town,  in  a  par- 
ticular county,  intoxicating  liquors  were  unlawfully  kept, 
deposited,  and  transported  by  J.  K.  in  a  Ford  touring  car 
(giving  its  number),  owned  and  driven  by  said  J.  K.  on  the 
public  way  in  said  town,  cannot  be  held  to  charge  the  offense 
of  keeping  and  depositing  intoxicating  liquors,  under  Rev. 
St.  of  Maine,  c.  127,  §  27;  there  being  no  allegation  of  the 
place  at  which  kept  and  deposited. 

State  v.  Ford  Touring  Car  No.  1,440,316,  117  Me.  232, 
103  Atl.  364. 

State  v.  Atwood,  166  N.  C.  438,  81  S.  E.  318. 

The  offense  denounced  by  statute,  prohibiting  the  keeping 
of  a  place  for  the  unlawful  sale  of  intoxicating  liquor,  is 


TITLE  II— SEC.  32  OF  ACT  257 

complete  when  one  holds  himself  out  to  the  public  as  ready 
and  able  to  furnish  liquor,  and  an  indictment  charging  the 
offense  sufficiently  identifies  it  by  designating  the  particular 
building  or  place  where  liquor  is  kept  for  unlawful  sale. 
Fehringer  v.  People,  59  Colo.  3,  147  Pac.  361. 

So  far  as  an  alleged  violation  through  the  accused's  keep- 
ing liquor  on  hand  at  his  place  of  business  is  concerned,  it  is 
not  necessary  to  describe  the  place  of  business  further  than 
to  locate  it  in  the  county  of  the  prosecution,  but  where  keep- 
ing on  hand  at  a  public  place  is  charged  the  indictment 
should  specify  what  public  place  is  referred  to. 
Hall  v.  State,  8  Ga.  App.  747,  70  S.  E.  211. 

A  place  where  intoxicating  liquors  were  unlawfully  kept 
was  sufficiently  described  as  "Lot  No.  46  in  the  original 
town  of  R.,  Crawford  County,  Kansas." 

State  v.  Macek,  140  Kan.  742,  180  Pac.  985. 

"In  a  prosecution  for  the  so-called  crime  of  bootlegging 
under  the  provisions  of  section  10144  of  the  (North  Dakota) 
compiled  Laws  of  1913,  an  information  is  sufficiently  def- 
inite which  charges  that  the  crime  was  committed  in  a  barn 
on  a  certain  block,  in  a  certain  city  and  county,  and  the 
name  of  the  owner  of  such  barn  is  not  necessary." 
State  v.  Stanley,  38  N.  D.  311,  164  N.  W.  702. 

But  where  defendants  were  charged  with  the  sale  of 
intoxicating  liquors  on  Sunday  at  a  place  within  the  borough 
limits  of  Penn's  Grove,  and  the  proofs  showed  sales  in  the 
open  waters  of  the  Delaware  river,  but  the  state  did  not 
attempt  to  show  that  the  boundaries  of  such  borough  ex- 
tended below  the  lower-water  mark,  in  view  of  4  Comp.  St. 
of  New  Jersey,  1910,  p.  5371,  providing  that  an  offense  com- 
mitted upon  such  river  shall  be  described  "as  having  been 
committed  in  and  upon  the  waters  of  the  River  Delaware  in 
said  county,"  the  contention  that  defendants  were  convicted 
of  a  crime  other  than  charged  must  be  sustained. 
State  v.  Cooper  (N.  J.  Sup.),  107  Atl.  149. 

Origin  and  Destination  of  Conveyance. — "An  in- 
formation, charging  an  unlawful  conveyance  of  intoxicating 
liquor,  must  allege  the  place  or  point  in  the  county  from  and 


258  TITLE  II— SEC.  32  OE  ACT 

to  which  such  conveyance  was  made,  if  they  are  known,  and, 
if  unknown,  it  must  be  so  alleged." 

Robbins  v.  State,  12  Okla.  Cr.  App.  412,  157  Pac.  1027. 

In  another  case  it  was  said :  "It  is  averred  in  the  informa- 
tion in  this  case  that  the  place  from  which  said  alcohol  was 
transported  was  unknown  to  the  informant,  and  that  it  was 
transported  to  a  designated  place  in  the  city  of  Eufaula, 
and  these  allegations  as  to  the  transportation  of  said  alcohol 
were  sufficient.  In  Schave  v.  State,  4  Okl.  Cr.  App.  285,  111 
Pac.  962,  it  is  held :  'An  information  charging  the  unlawful 
conveyance  of  liquor  from  one  place  in  the  state  to  another 
place  therein  is  not  defective  for  failing  to  state  the  place 
from  which  the  liquor  was  conveyed,  where  it  alleges  that 
such  place  was  unknown  to  the  informant.'  " 

McNeal  v.  State  (Okla.  Cr.  App.),  179  Pac.  943,  944. 

An  indictment  under  Reed  Amendment,  Act  March  3, 
1917,  for  transporting  liquor  into  a  prohibition  state,  is  not 
fatally  defective  because  it  incorrectly  states  the  point  from 
which  the  transportation  started. 

Malcolm  v.  United  States  (C.  C.  A.),  256  Fed.  363. 

A  presentment  need  not  specify  the  place  where  the  trans- 
portation began  when  such  place  is  unknown  to  the  grand 
jurors. 

Liquor  Transp.  Cases  v.  State,  140  Tenn.  (13  Thomp- 
son) 582,  205  S.  W.  423,  424. 
See  also  Sickel  v.  Com.  (Va.),  197  S.  E.  783. 

Necessity  of  Alleging  within  State. — An  affidavit 
charging  the  unlawful  keeping  of  intoxicating  liquor  for 
sale  in  the  city,  town,  and  state,  with  intent  then  and  there 
to  sell,  barter,  exchange,  give  away,  furnish,  or  otherwise 
dispose  of  the  same,  to  persons  within  this  state,  being  in 
the  language  of  the  statute,  is  sufficient  as  against  the  ob- 
jection that  it  fails  to  allege  appellee's  keeping  such  liquors 
for  sale  within  the  state. 

Schulmeyer  v.  State  (Ind.),  124  N.  E.  490. 

An  indictment  for  having  possession  of  liquor  in  the  In- 
dian country,  is  not  subject  to  demurrer,  because  it  did  not 


TITLE  II— SEC.  32  OF  ACT  259 

specifically  designate  the  particular  location  in  the  Indian 
country  within  the  named  district. 

United  States  v.  Luther  (D.  C.),  260  Fed.  579. 

12.  AVERMENTS  OF  TIME. 

An  indictment  need  not  aver  the  time  of  the  commission 
of  the  offense  charged,  unless  time  is  of  the  essence,  in  which 
case  it  must  be  averred  and  proved. 

Kelley  v.  State,  171  Ala.  44,  55  So.  141. 

An  allegation  in  an  indictment  for  selling  intoxicating 
liquor  as  to  the  time  of  the  sale  is  immaterial,  and  a  con- 
viction may  be  sustained  upon  proof  of  the  sale  to  the  per- 
son named  at  any  time  within  two  years  prior  to  the  filing 
of  the  indictment. 

State  v.  Freeman,  162  N.  C.  594,  77  S.  E.  780. 
Clopton  v.  Commonwealth,  190  Va.  813,  63  S.  E.  1022. 

The  offense  of  engaging  in  the  business  of  selling  liquor 
in  prohibition  territory,  laid  by  the  indictment  as  committed 
on  or  about  a  certain  day  embraces  a  period  of  three  years 
prior  and  up  to  the  filing  of  the  indictment. 

Jackson  v.  State  (Tex.  Cr.  App.),  200  S.  W.  150. 

Where  an  indictment  for  wrongfully  selling  liquor  with- 
out a  license  charged  that  the  offense  was  committed  on 
August  4,  1910,  the  state  was  entitled  to  offer  evidence  of 
a  sale  made  by  accused  on  the  18th  following;  time  not  being 
of  the  essence  of  the  offense. 

State  v.  Green,  127  La.  830,  54  So.  44. 

See  also,  State  v.  Francis,  157  N.  C.  612,  72  S.  E.  1041. 

An  indictment  for  pursuing  the  business  of  selling  intox- 
icants in  local  option  territory,  alleging  that  on  or  about  the 
25th  day  of  April  A.  D.  1917,  and  anterior  to  the  present- 
ment of  the  indictment,  defendant  in  a  named  county  did 
then  and  there  engage  in  and  pursue  the  occupation  and 
business  of  selling  intoxicating  liquor,  and  setting  out  the 
date  of  numerous  specific  sales,  is  not  defective,  in  that  no 
sales  are  alleged  to  have  been  made  on  or  after  the  day  de- 
fendant is  alleged  to  be  engaged  in  the  business  on  which  day 


260  TITLE  II— SEC.  32  OF  ACT 

the  bill  was  returned ;  at  least  two  specific  sales  within  three 
years  being  specified. 

Alexander  v.  State  (Tex.  Cr.  App.),  204  S.  W.  644,  645. 

"In  State  v.  Green,  127  La.  830,  54  So.  45,  the  court  said: 
'But,  while  time  is  not  of  the  essence,  so  far  as  fixing  a  date 
in  the  indictment  is  concerned,  it  is  of  the  essence  so  far  as 
letting  the  defendant  know  at  some  stage  or  other  of  the  trial 
what  particular  offense  he  is  being  called  upon  to  answer. 
Therefore,  by  offering  evidence  of  a  sale  made  on  the  18th 
of  August,  the  prosecution  committed  itself  to  the  sale  of 
that  date  as  being  the  one  for  which  the  defendant  was  pros- 
ecuted. And,  this  being  so,  it  was  error  to  allow  evidence 
of  a  sale  made  on  a  different  date.  The  indictment  being 
for  the  selling  of  liquors,  and  not  for  the  keeping  of  a  grog 
or  tippling  shop,  each  separate  sale  was  a  distinct  offense; 
and  it  is  elementary  that  evidence  of  other  crimes  than  that 
for  which  the  defendant  is  being  tried  is  not  admissible.' 
'Where  on  an  indictment  for  illegal  selling,  the  prosecution 
has  proved  one  unlawful  sale,  it  is  error  to  admit  evidence 
of  other  sales.'  9  Cyc.  269.  On  the  trial  of  the  case  the 
witness  for  the  prosecution  was  permitted  to  testify  to  two 
sales  of  whisky,  at  different  times,  and  under  different  cir- 
cumstances, one  on  April  4th  (Easter  Sunday),  and  the 
other  shortly  before  or  after,  or  some  time  after.  That  the 
sales  were  distinct  is  conclusively  shown  by  the  testimony 
of  the  witness  that  on  April  4th  he  got  whisky  some  50 
steps  from  the  shop  of  the  defendants,  and  at  another  time 
got  whisky  within  said  shop,  and  on  both  occasions  left 
money  on  the  counter  of  the  shop  to  pay  for  the  whisky, 
the  case  comes  clearly  within  the  rule  enunciated  in  State 
V.  Green,  supra!' 

State  v.  Elliott,  138  La.  457,  70  So.  473,  474. 

An  information  for  keeping  intoxicating  liquors  for  sale 
as  a  beverage,  contrary  to  the  provisions  of  the  Laws  of 
North  Dakota  and  which  states  that:  Heretofore,  to  wit, 
at  various  and  sundry  times  between  the  1st  day  of  April, 
1912,  and  the  30th  day  of  November  1912,  in  the  county  of 
Benson  in  said  state  of  North  Dakota,  one  Lloyd  Lesh,  late 
of  said  county  of  Benson  and  said  statute  of  North  Dakota, 
did  commit  the  crime  of  keeping  intoxicating  liquors  for 


TITLE  II— SEC.  32  OF  ACT  261 

sale  as  a  beverage,  committed  as  follows,  to  wit:  That  at 
said  time  and  place  the  said  Lloyd  Lesh  did  wilfully,  wrong- 
fully and  unlawfully  keep  intoxicating  liquor  for  sale  as  a 
beverage,  etc.,  sufficiently  charges  the  offense  of  keeping  in- 
toxicating liquors  for  sale  as  a  beverage,  and  is  not  defec- 
tive in  that  it  fails  to  specify  the  date  on  which  the  crime 
was  committed  nor  is  it  void  for  duplicity. 

State  v.  Lesh,  27  N.  D.  165,  145  N.  W.  829. 

Under  a  statute  declaring  it  not  necessary  to  state  the 
time  at  which  the  offense  was  committed,  and  that  it  may 
be  alleged  to  have  been  committed  on  any  day  before  the 
finding  of  the  indictment  and  generally  before  such  finding, 
unless  time  is  a  material  element  of  the  offense,  the  time  of 
unlawfully  keeping  for  sale,  and  selling  intoxicating  liquors 
was  not  a  necessary  averment  of  an  affidavit  charging  the 
offense,  and  affidavit  charging  its  commission  within  the 
last  12  months  was  sufficient;  but  if  averred  as  committed 
at  any  time  before  the  affidavit,  defendant  might  require  the 
state  to  show  its  commission  at  that  time  and  within  the 
time  prescribed  by  the  statute  making  it  punishable. 
Glover  v.  State,  11  Ala.  App.  287,  66  So.  877. 

An  indictment  against  a  druggist  for  the  sale  of  intoxi- 
cating liquor  is  not  bad  for  not  specifying  the  day  of  sale, 
if  it  alleged  it  to  be  within  one  year  before  the  finding  of 
the  indictment. 

State  v.  Davis,  68  W.  Va.  184,  69  S.  E.  644. 

But  an  information  charging  that  defendant  on  July  27, 
1916,  and  between  that  date  and  May  29,  1916,  possessed 
certain  liquor,  but  not  averring  possession  of  all  of  such  liq- 
uor at  one  and  the  same  time,  was  too  indefinite  to  sustain 
a  judgment  thereon,  and  was  demurrable. 

Killough  v.  State  (Okla.  Cr.  App.),  183  Pac.  430. 

Period  of  Alleged  Nuisance. — Since  a  conviction  or  ac- 
quittal of  maintaining  a  liquor  nuisance  during  a  given  pe- 
riod bars  subsequent  prosecution  based  on  the  same  period, 
an  indictment  must  specifically  allege  the  time  relied  on  with 
certainty. 

State  v.  Peloquin,  106  Me.  358,  76  Atl.  888. 


262  TITLE  II— SEC.  32  OF  ACT 

An  indictment  charging  the  keeping  of  a  liquor  nuisance 
between  a  specified  date  and  the  date  of  the  finding  of  the 
indictment  was  sufficient  to  cover  the  period  between  the 
specified  day  and  the  first  day  of  the  term  at  which  the  in- 
dictment was  found. 

State  v.  Peloquin,  106  Me.  358,  76  Atl. 


Averments     Respecting     Period     of     Limitation.— 

Where   an    indictment   charged  that  accused   on  the 

day  of ,  in  the  year  19 —  and  within  the  last  two  years, 

did  unlawfully  sell,  by  retail,  whisky,  etc.,  without  a  license, 
it  sufficiently  charged  that  the  sale  was  within  the  two-year 
statutory  period  of  limitations ;  the  balance  of  the  allegation 
as  to  the  time  being  meaningless  and  surplusage. 

Mullins  v.  Commonwealth,  115  Va.  945,  79  S.  E.  324. 

An  indictment  which  recited  that  it  was  found  at  the 
December  term,  1912,  and  charged  that  accused,  within  12 
months  on  the  last  preceding  191 —  in  the  said  county,  did 
sell,  etc.,  without  license,  sufficiently  showed  that  the  offense 
was  committed  within  the  statutory  period  of  limitation,  and 
was  sufficient  notwithstanding  the  omission  in  charging  the 
year  in  which  the  offense  was  committed. 

Shiflett  v.  Commonwealth,  114  Va.  876,  77  S.  E.  606. 

An    indictment  found  October    17,   1910,  charging    that 
since  August  25,  1909,  accused  unlawfully  sold  liquors,  etc., 
was  not  demurrable,  as  showing  that  the  offense  was  com- 
mitted more  than  one  year  before  finding  of  the  indictment. 
Gresham  v.  State,  1  Ala.  App.  230,  55  So.  447. 

While,  under  a  statute  providing  that  an  indictment  shall 
not  be  invalid  for  omitting  to  state  the  time  at  which  the 
offense  was  committed,  the  indictment  for  unlawfully  sell- 
ing intoxicants  need  not  allege  the  precise  time  of  the  sale, 
it  must  allege  facts  showing  that  the  offense  charged  was 
committed  within  the  period  of  limitation. 

Shiflett  v.  Commonwealth,  114  Ya.  876,  77  S.  E.  606. 

Averment  of  Act  Lawful  within  Part  of  Period  Cov- 
ered.— An  indictment  charging  that  defendant  within  a 
year  prior  to  finding  the  indictment  unlawfully  had  in  his 


TITLE  II— SEC.  32  OF  ACT  263 

possession  two  quarts  of  whisky  is  bad ;  such  act  not  having 
been  an  offense  till  three  months  before  the  finding  of  the 
indictment. 

Blair  v.  Commonwealth,  122  Va.  798,  94  S.  E.  185. 

And  an  indictment  charging  that  within  a  year  next  prior 
to  its  finding,  defendant  unlawfully  gave  away  ardent  spir- 
its, having  been  found  within  three  months  after  the  going 
into  effect  of  the  prohibition  law,  prior  to  which  the  act 
charged  was  not  necessarily  unlawful,  is  insufficient. 

Kennan  v.  Commonwealth,  122  Va.  831,  94  S.  E.  186. 

An  indictment  charging  a  sale  of  intoxicating  liquor  with- 
out a  license  covers  a  violation  of  the  law  12  months  prior 
to  its  return  into  court,  and  an  indictment  returned  at  the 
1909  fall  term  of  court,  while  the  prohibitory  law  did  not 
become  effective  until  January  1st,  of  that  year  is  demur- 
rable,  because  covering  time  prior  to  January  1st,  1909,  in 
the  absence  of  any  local  prohibitory  law  covering  the  county. 

Kelley  v.  State,  171  Ala.  44,  55  So.  141. 

See  also,  Lester  v.  State,  8  Ala.  App.  376,  62  So.  337. 

Where  an  affidavit  for  an  alleged  wrongful  sale  of  intoxi- 
cating liquors  only  attempted  to  charge  an  offense  in  J. 
County  under  the  prohibitory  law  (Gen.  Acts  Sp.  Sess.  1907, 
p.  71,  1)  which  went  into  effect  in  J.  County  on  January  1, 
1908,  and  the  complaint  was  made  on  May  1st,  of  that  year, 
time  was  a  material  ingredient  of  the  offense,  and  the  com- 
plaint was  fatally  defective  for  failure  to  allege  that  the  of- 
fense was  committed  after  the  act  took  effect. 

Marks  v.  State,  159  Ala.  71,  48  So.  864,  133  Ann.  St. 
Rep.  20. 

13.  AVERMENTS  OF  QUANTITY  AND  PRICE. 

An  allegation  in  an  indictment  as  to  quantity  of  liquor 
sold  need  not  be  proved  as  laid  unless  the  quantity  consti- 
tutes an  essential  element  of  the  crime. 

Strozier  v.  State,  127  Ark.  543,  192  S.  W.  884. 
See  Hall  v.  State,  8  Ga.  App.  747,  70  S.  E.  211. 


264  TITLE  II— SEC.  32  OF  ACT 

Nature  of  Consideration.— It  need  not  be  alleged  of 
what  the  valuable  consideration  for  which  the  liquor  was 
sold  consisted. 

Hall  v.  State,  8  Ga.  App.  747,  70  S.  E.  211. 

State  v.  John,  129  La.  208,  55  So.  766. 

14.  AVERMENTS  OF  NAMES. 

Name  of  Vendee. — The  state  is  not  required  to  allege 
the  name  of  the  person  to  whom  a  sale  of  intoxicating  liq- 
uor was  made,  and,  although  each  separate  sale  constitutes 
a  separate  offense,  may  offer  proof  of  more  than  one  sale 
to  secure  a  single  conviction,  but  subsequent  prosecution  is 
barred  on  all  sales  offered  in  evidence. 

Dean  v.  State,  130  Ark.  322,  197  S.  W.  684. 

See  also,  State  v.  John,  129  La.  208,  55  So.  766. 

Clopton  v.  Commonwealth,  109  Va.  813,  63  S.  E.  1022. 

Hall  v.  State,  8  Ga.  App.  747,  70  S.  E.  211. 

"The  state  is  not  required  to  inform  the  defendant,  in  a 
bill  of  information  or  indictment  charging  him  with  having 
unlawfully  sold  intoxicating  liquor  of  the  name  of  the  pur- 
chaser." 

State  v.  Smith,  139  La.  442,  71  So.  734. 

Though  the  illegal  sale  of  intoxicating  liquors  is  now 
a  felony  instead  of  a  misdemeanor,  the  rule  still  applies 
that  it  is  not  necessary  for  the  indictment  to  allege  the 
name  of  the  purchaser. 

Springer  v.  State,  129  Ark.  106,  195  S.  W.  376. 

The  name  of  the  purchaser  need  not  be  stated  in  an  in- 
dictment for  the  sale  of  intoxicating  liquors;  but  if  the 
name  is  stated,  proof  of  sale  to  any  other  person  is  irrelevant, 
unless  he  was  agent  for  the  person  named  and  the  defend- 
ant was  aware  of  this  relation. 

Finch  v.  State,  6  Ga.  App.  338,  64  S.  E.  1007. 

Pines  v.  State,  15  Ga.  App.  348,  83  S.  E.  198. 

Williams  v.  State,  89  Ga.  438,  15  S.  E.  552. 

Carter  v.  State,  68  Ga.  96. 

It  is  said  in  one  case :  "There  is  some  conflict  in  the 
authorities  as  to  whether  it  is  necessary  to  name  the  pur- 


TITLE  II— SEC.  32  OF  ACT  265 

chaser  in  an  indictment  or  information  charging  one  with 
unlawfully  selling  intoxicating  liquor.  The  better  rule  is 
tersely  expressed  in  Fletcher  v.  Commonwealth,  106  Va. 
840,  56  S.  E.  149,  where  it  is  said :  'The  gist  of  the  offense 
is  the  unlawful  sale,  and  the  name  of  the  person  to  whom  it 
was  made  is  immaterial.'  This  ruling  is  favored,  without 
being  expressly  decided,  in  our  own  case  of  State  v.  Bo- 
decker,  11  Wash.  417,  39  Pac.  645,  where  we  said:  'The 
crime,  under  our  statute,  consists  in  the  selling,  and  there 
would  seem  to  be  no  reason  why  the  name  or  names  of  the 
individual  or  individuals  to  whom  the  sale  is  made  should  be 
specified' — citing  State  v.  Becker,  20  la.  438;  State  v. 
Schweiter,  27  Kan.  499;  State  v.  Gummer,  22  Wis.  411; 
State  v.  Jaques,  68  Mo.  260;  State  v.  Heldt,  41  Tex.  220." 

State  v.  Koerner  (Wash.),  175  Pac.  175,  176. 

An  indictment  against  a  druggist  for  the  sale  of  intoxi- 
cating liquor  is  not  bad  for  not  naming  the  person  to  whom 
the  sale  was  made. 

State  v.  Davis,  68  W.  Va.  184,  69  S.  E.  644. 

But  an  information  for  violation  of  the  Arizona  Pro- 
hibition Law  must,  in  view  of  Pen.  Code  1913,  §§  934,  936, 
938,  939,  943,  Const.  Art.  2,  §  24,  name  the  person  to  whom 
the  liquor  was  sold  or  given. 

Earp  v.  State  (Ariz.),  184  Pac.  942. 

Indictment  for  Pursuing  Liquor  Business. — But  an 
indictment  for  pursuing  the  business  of  selling  intoxicating 
liquors  in  prohibited  territory  must  give  the  name  of  the 
alleged  purchaser  of  liquor  touching  the  two  sales  essential 
under  the  statute. 

Fisher  v.  State,  81  Tex.  Cr.  App.  568,  197  S.  W.  189. 

Information  Charging  Conspiracy.— "In  an  infor- 
mation charging  a  conspiracy  with  intent  to  sell  intoxicat- 
ing liquors,  it  is  not  necessary  to  aver  in  said  information 
the  names  of  the  person  or  persons  to  whom  the  defend- 
ants intended  to  sell  such  liquors." 

Conley  v.  State  (Okla.  Cr.  App.),  179  Pac.  480. 


266  TITLE  II— SEC.  32  OF  ACT 

Name  of  Person  for  Whom  Kept  and  to  Whom  De- 
livered.— In  an  information  charging  that  defendant  un- 
lawfully kept  for  and  delivered  to  one  John  Doe,  whose  true 
name  is  unknown,  a  certain  amount  of  intoxicating  liquor, 
the  charge  that  it  was  kept  for  a  person  unknown  could 
be  treated  as  surplusage,  so  that  the  information  was  not 
invalid  as  not  stating  the  name  of  the  party  for  whom  it  was 
kept. 

State  v.  Leonard  (Mo.  App.),  190  S.  W.  957. 

An  information  charging  the  keeping  of  intoxicating  liq- 
uor for  another  in  violation  of  Rev.  St.  1909,  7226,  is  suf- 
ficient, though  it  does  not  name  the  person  for  whom  the 
liquor  was  kept. 

State  v.  Brown  (Mo.  App.),  198  S.  W.  177. 

"In  prosecution  for  the  sale  of  intoxicating  liquor  it  is 
well  settled  that  the  name  of  the  person  to  whom  the  liq- 
uor is  sold  is  immaterial ;  the  person  to  whom  it  is  sold  not 
being  an  element  of  the  offense.  State  v.  Curtwright,  134 
Mo.  App.  588,  114  S.  W.  1146;  State  v.  Haney,  151  Mo. 
App.  251,  132  S.  W.  55;  State  v.  Spain,  29  Mo.  415;  State 
v.  Jaques,  68  Mo.  260;  State  v.  Ladd,  15  Mo.  430.  It 
would  seem  that,  in  reason,  the  same  rule  would  apply  in  a 
prosecution  for  keeping  liquor  for  another.  The  word  'sale' 
in  ex  termini,  includes  a  person  to  whom  the  sale  is  made, 
as  much  so  as  the  phrase  'keep  for  another'  includes  such 
other." 

State  v.  Leonard  (Mo.  App.),  190  S.  W.  957. 

Name  of  Person  to  Whom  Gift  Was  Made. — Where  a 
statute  makes  it  unlawful  to  sell,  give  away,  or  otherwise 
dispose  of,  whisky,  etc.,  and  another  statute  provides  that 
any  indictment  charging  that  prohibited  liquors  were  sold, 
kept  for  sale,  "or  otherwise  disposed  of,"  need  not  allege 
the  person  to  whom  such  sale  "or  other  disposition"  was 
made;  and  section  31,  provides  that  the  term  "otherwise  dis- 
posed of"  following  the  word  "sold,"  etc.,  when  used  in  any 
indictment,  shall  include  giving  away,  etc.,  it  was  held,  con- 
struing the  several  related  acts  together,  that  an  indictment 
for  giving  away  whisky,  in  violation  of  section  3  of  the  Car- 


TITLE  II— SEC.  32  OF  ACT  267 

michael  act,  need  not  allege  the  name  of  the  person  to  whom 
the  gift  was  made. 

Grace  v.  State,  1  Ala.  App.  211,  56  So.  25. 

Name  of  Person  to  Whom  Transported  or  Delivered. 

— In  an  indictment  for  violation  of  a  statute  denouncing  the 
shipment,  transportation,  or  delivery  of  intoxicating  liquors 
from  any  other  state,  territory,  or  foreign  country  to  an- 
other person,  firm,  or  corporation  in  Arkansas,  it  is  unnec- 
essary to  specify  the  names  of  the  persons  to  whom  the  liq- 
uor has  been  transported  or  delivered. 

Winfrey  v.  State,  133  Ark.  357,  202  S.  W.  23. 

See  also,  State  v.  Duff,  81  W.  Va.  407,  94  S.  E.  498. 

Averment  That  Name  Is  Unknown.— \Yhile  an  indict- 
ment for  selling  intoxicating  liquors  to  persons  to  the  grand 
jurors  unknown  is  authorized,  yet  the  state  to  procure  a  con- 
viction must  offer  evidence  tending  to  prove  an  actual  sale  to 
the  unknown  persons  and  in  the  absence  of  such  proof  a  con- 
viction will  not  be  supported. 

State  v.  Watkins,  164  N.  C.  425,  79  S.  E.  619. 

An  indictment  stating  that  accused  on  a  specified  date  with 
force  and  arms  in  a  specified  county  unlawfully  sold  intoxi- 
cating liquor,  gin  and  beer  to  persons  whose  names  were 
unknown  to  the  grand  jurors,  contrary,  etc.,  sufficiently 
charged  an  offense. 

State  v.  Dunn,  158  N.  C.  654,  74  S.  E.  359. 

Omission  to  Name  Known  Vendee. — In  Xew  Jersey  if 
an  indictment  contains  an  averment  of  an  illegal  sale  of  liq- 
uors to  persons  unknown  to  the  grand  jury,  it  is  improper 
on  the  trial  to  admit  the  evidence  as  to  sales  made  to  them 
of  persons  who  were  subpoenaed  to  testify  or  testified  before 
the  grand  jury,  but  are  not  named  in  the  indictment. 
State  v.  Smith,  89  N.  J.  L.  52,  97  Atl.  780. 

Name  of  Defendant— Idem  Sonans. — In  a  prosecution 
of  "Philip  G."  for  illegally  selling  intoxicating  liquors,  that 
one  count  charged  him  as  "Philup  G."  did  not  vitiate  the  in- 
dictment, as  the  names  were  idem  sonans. 

People  v.  Goldberg,  287  111.  238,  122  N.  E.  530. 


268  TITLE  II— SEC.  32  OP  ACT 

Names  of  Witnesses  to  Sale. — Where  an  indictment 
charges  the  unlawful  sale  of  intoxicating  liquors,  it  is  not 
necessary  to  give  the  names  of  the  witnesses  to  the  sale. 
State  v.  John,  129  Lt.  208,  55  So.  766. 

15.  AVERMENTS  OF  KIND  OF  LIQUOR. 

The  use  of  the  term  whisky  in  an  indictment  charging  the 
defendant  with  selling  "intoxicating  liquor,  to  wit,  whisky," 
is  sufficient  to  show  the  sale  of  distilled  liquor,  within  the 
statute  prohibiting  the  sale  thereof. 

Mullins  v.  Commonwealth,  115  Va.  945,  79  S.  E.  324. 

Under  a  statute  requiring  interstate  shipments  of  spirit- 
uous, malted,  fermented,  or  other  intoxicating  liquor  to  be 
so  labeled  as  to  plainly  show  the  nature  of  their  contents  and 
the  quality  contained  therein,  it  was  sufficient  to  describe 
the  contents  as  intoxicating  liquor,  without  specifying  the 
particular  kind  of  liquor. 

United  States  v.  Hillsdale  Distillery  Co.   (D.  C.),  242 

Fed.  536. 
See  also,  State  v.  Busick,  90  Ore.  466,  177  Pac.  64. 

An  indictment  for  the  unlawful  carriage  of  intoxicating 
liquors,  otherwise  in  due  form,  is  not  insufficient  or  defective 
because  it  fails  to  specify  the  kind  of  liquors. 
State  v.  Duff,  81  W.  Va.  407,  94  S.  E.  498. 

16.  AVERMENTS  OF  INTOXICATING  CHARACTER. 

Where  a  statute  provides  that  on  the  adoption  of  local  op- 
tion it  shall  not  be  lawful  for  any  person  within  the  limits 
of  the  territory  covered  to  sell  in  any  manner  any  kind  of 
intoxicating  liquors  or  beverage  containing  alcohol  in  any 
quantity  whatever,  an  information  for  violating  the  local 
option  law  charging  a  sale  of  intoxicating  liquor,  to  wit, 
one  pint  of  cider,  a  fermented  beverage  containing  alcohol, 
was  not  objectionable  for  failure  to  charge  that  the  cider 
sold  was  intoxicating  or  contained  any  quantity  of  alcohol. 
State  v.  Crider,  180  Mo.  App.  77,  168  S.  W.  315. 

"The  special  presentment  charged  that  the  accused  did  sell 
and  barter  for  a  valuable  consideration  rum,  gin,  cider,  al- 


TITLE  II— SEC.  32  OF  ACT  269 

coholic  spirituous  malt,  and  intoxicating  bitters,  and  other 
drinks,  which  if  drunk  to  excess  will  produce  intoxication, 
contrary,  to  the  law,  etc.,  while  cider,  eo  nomine,  is  not  pre- 
sumptively an  intoxicating  liquor,  and  the  intoxicating  qual- 
ity of  a  cider  alleged  to  have  been  sold  in  violation  of  law 
must  be  proved,  still  the  subsequent  conjunctive  statement 
of  the  present  accusation  (as  part  of  the  charge  as  a  whole) 
that  the  defendant  sold  other  drinks  which  if  drank  to  ex- 
cess would  produce  intoxication,  involves  and  impliedly  in- 
cludes a  charge  that  the  cider  which  the  accused  was  alleged 
to  have  sold  was  an  intoxicating  liquor,  the  court  did  not 
err  in  overruling  the  demurrer." 

Lewis  v.  State,  17  Ga.  App.  445,  87  S.  E.  709. 

'Intoxicant." — An  affidavit  charging  that  accused  did 
unlawfully  sell  one  pint  of  intoxicant  liquors  will  support  a 
conviction,  although  the  word  "intoxicant"  is  a  noun  mean- 
ing that  which  intoxicates,  and  should  not  be  used  to  modify 
the  noun  liquors,  for  accused  must  have  understood  that  it 
was  intended  to  charge  him  with  the  selling  of  intoxicating 
liquors. 

Pope  v.  State,  108  Miss.  706,  67  So.  177. 

In  a  Delaware  case,  the  court  said :  "The  second  conten- 
tion is  that  the  allegation  of  the  sale  of  'intoxicating  liquor, 
to  wit,  beer,'  is  insufficient.  In  the  opinion  of  the  court  the 
word  'beer'  without  restriction  or  qualification  denotes  an 
intoxicating  malt  liquor  and  is  within  the  meaning  of  the 
words  'intoxicating  liquor,'  and  the  use  of  the  word  'beer' 
alone  in  an  indictment  charging  the  unlawful  sale  of  intoxi- 
cating liquor  is  presumed  to  include  only  that  species  of  bev- 
erage. The  court  will  take  judicial  notice,  under  our  statute, 
of  the  fact  that  'beer'  is  the  usual  name  for  a  malt  liquor, 
and  that  it  is  intoxicating,  and  a  charge  of  an  alleged  sale 
of  intoxicating  liquor  is  sustained  by  proof  of  the  sale  of 
beer,  without  any  further  description  or  testimony  that  it 
was  intoxicating." 

State  v.  Li  Fieri  (Del.),  102  Atl.  77. 

And  under  a  statute  making  persistent  violation  of  the  pro- 
hibitory law  a  felony,  being  supplemental  legislation,  the  pro- 
cedure authorized  by  the  general  intoxicating  liquor  law  gov- 


270  TITLE  II— SEC.  32  OF  ACT 

erns,  and  an  information  for  persistent  violation  need  not 
state  the  kind  of  liquor  sold  or  the  name  of  the  person  to 
whom  sold. 

State  v.  Schmidt,  92  Kan.  457,  140  Pac.  843. 

An  information  charging  that  defendant  sold  for  beverage 
purposes  a  malt  product  "commonly  known  as  lager  beer" 
and  containing  as  much  as  one-half  of  1  per  cent,  of  alcohol, 
is  good  on  demurrer,  although  it  did  not  charge  in  terms  that 
the  article  was  intoxicating. 

United  States  v.  Schmauder  (D.  C.),  258  Fed.  251. 

But  an  information  charging  one  with  unlawfully  selling 
certain  liquids,  without  in  any  way  charging  that  the  liquids 
sold  were  spirituous,  malt,  vinous,  fermented,  or  intoxicat- 
ing liquors,  does  not  state  an  offense. 

Ex  parte  McKenna,  97  Kan.  153,  154  Pac.  226. 

An  information  under  War-Time  Prohibition  Act  Nov. 
21,  1918,  is  fatally  defective  for  failure  to  allege  that  the 
beer  sold  was  in  fact  intoxicating. 

United  States  v.  Baumgartner  (D.  C.),  259  Fed.  722. 

Charging  Keeping  of  Liquor  Containing  Alcohol. — 
An  indictment  charging  accused  with  keeping  a  distillery 
where  alcoholic  liquors  were  manufactured  sufficiently 
charges  a  violation  of  an  act  prohibiting  the  keeping  of  liq- 
uor containing  alcohol  which  if  drunk  to  excess  will  produce 
intoxication. 

State  v.  Raven,  91  S.  C.  265,  74  S.  E.  500. 

Indictment  for  Illegal  Manufacture  Insufficient  in 
Not  Alleging  Liquor  Intoxicating. — An  indictment  charg- 
ing defendant  with  the  manufacture  of  a  malt  liquor  having 
an  alcoholic  content  of  one-half  of  1  per  cent,  or  more,  but 
not  alleged  to  be  intoxicating,  is  demurrable. 

United  States  v.  Standard  Brewery  (D.  C.),  260  Fed. 
486. 

17.  AVERMENT  OF  PRIOR  OFFENSES. 

"In  an  information  for  keeping  and  maintaining  a  com- 
mon nuisance  as  a  second  offense,  contrary  to  the  provisions 


TITLE  II— SEC.  32  OF  ACT  271 

of  the  prohibition  law,  the  former  conviction  need  not  be  set 
forth  at  length,  but  a  brief  allegation  of  such  conviction  is 
sufficient." 

State  v.  Webb,  36  N.  D.  235,  162  N.  W.  358,  359. 
See  also,  State  v.  Dereiko  (Wash.),  182  Pac.  597. 

An  indictment  need  not  allege  that  the  offense  charged  is 
a  second  or  subsequent  offense  to  authorize  the  court  to  im- 
pose an  increased  punishment  for  a  second  or  subsequent 
offense  authorized  by  statute,  nor  is  proof  of  that  fact  be- 
yond the  record  of  the  former  conviction  before  the  court, 
the  two  indictments  having  been  tried  on  succeeding  days 
before  the  same  court,  essential  to  justify  the  imposition  of 
such  punishment. 

State  v.  Kelly,  89  S.  C.  303,  71  S.  E.  987. 

An  indictment  attempting  to  set  up  former  convictions  for 
similar  offenses,  charging  defendant  with  "unlawfully  sell- 
ing intoxicating  liquors,"  is  insufficient  to  charge  a  viola- 
tion of  the  law  so  as  to  form  a  basis  for  enhanced  punish- 
ment as  in  charging  an  offense  the  indictment  must  follow 
the  statute. 

Brittain  v.  State  (Tex.  Cr.  App.),  214  S.  W.  351. 

Of  First  Offense. — Under  a  law  providing  different  pen- 
alties for  violations  of  the  prohibition  law  for  a  first  or  sec- 
ond offense,  it  is  not  necessary  that  an  indictment  for  a  first 
offense  should  allege  that  it  is  the  first  offense. 

Rosenberg  v.  State,  5  Ala.  App.  196,  59  So.  366. 

18.  INDICTMENTS  FOR  SPECIAL  OFFENSES. 

Unlawful  Possession. — An  information  charging  only 
that  accused  kept  intoxicating  liquors  "for  unlawful  pur- 
poses" is  too  indefinite  to  charge  a  felony  under  Laws  1917, 
c.  187,  §  11. 

Wozniak  v.  State  (Neb.),  174  N.  W.  298. 

An  information  containing  recitals  warranting  classifica- 
tion of  defendant  as  a  persistent  violator  of  the  prohibitory 
law  and  charging  that  he  unlawfully  permitted  another  to 
keep  intoxicating  liquors  on  premises  controlled  by  defend- 


272  TITLE  II— SEC.  32  OF  ACT 

ant  in  violation  of  Laws  1917,  c.  215,  §  1,  is  not  subject  to 
motion  to  quash. 

State  v.  Macek,  104  Kan.  742,  180  Pac.  985. 

An  affidavit  charging  defendant  with  having  intoxicants 
in  his  possession  for  the  purpose  of  selling  or  giving  same 
away  in  violation  of  law,  need  only  allege  those  facts  which 
under  the  statute  constitute  the  crime ;  so  that  it  need  not 
allege  how  liquors  were  obtained,  whether  C.  O.  D.  or  with 
bill  of  lading  attached,  etc. 

Gulfort  v.  Martin,  96  Miss.  131,  50  So.  502. 

Keeping  Place  for  Sale. — "An  information  that 
charges  a  person  with  'keeping  a  place'  with  the  unlawful 
intention  and  purpose  of  bartering,  selling,  or  giving  away 
intoxicating  liquors,  fails  to  charge  all  the  essential  elements 
of  a  crime,  in  that  it  does  not  charge  an  overt  act,  resulting 
from  the  unlawful  intent  to  violate  the  law,  and  a  demur- 
rer thereto  on  the  ground  that  it  failed  to  charge  a  crime 
was  well  taken  and  should  have  been  sustained." 

Proctor  v.  State  (Okla.  Cr.  App.),  176  Pac.  771. 

Keeping  Intoxicants  Stored. — An  information  charg- 
ing defendant  with  violating  a  statute  by  keeping  intoxi- 
cants stored  in  private  residence,  must  charge  residence  was 
also  place  of  public  resort;  but  where  charge  is  stored  in 
other  than  private  residence,  it  is  immaterial  whether  place 
is  public  resort  or  not,  and  there  need  be  no  specification. 

People  v.  Labbe  (Mich.),  168  N.  W.  451. 

Example  of  Insufficient  Charge. — "A  warrant  charg- 
ing that  intoxicating  liquors  are  being  manufactured,  sold, 
offered,  exposed,  kept,  or  stored  for  sale,  or  bartered,  in  a 
certain  suit  case,  trunk,  or  other  container  in  the  possession 
of  a  certain  person  in  the  roads,  streets,  alleys,  or  room  in 
the  county,  does  not  charge  the  person  in  whose  posses- 
sion the  suit  case,  trunk  or  container  is  alleged  to  be  with 
manufacturing,  selling,  etc.,  nor  with  having,  keeping,  or 
carrying  such  liquors  unlawfully,  nor  with  any  other  offense 
under  the  statute." 

Emsweller  v.  Wallace,  78  W.  Va.  214,  88  S.  E.  787. 


TITLE  II— SEC.  32  OF  ACT  273 

Unlawful  Sale,  Generally.—  An  information  averring 
every  element  of  the  offense  of  selling  intoxicating  liquor, 
and  only  charging  one  offense  and  sufficiently  informing  de- 
fendant of  the  offense  he  was  called  upon  to  answer,  was 
not  demurrable. 

Bundy  v.  State  (Okla.  Cr.  App.),  184  Pac.  795. 

A  violation  of  the  prohibitory  law  by  means  of  a  sale  is 
always  sufficiently  charged  by  stating  that  on  a  specified 
date  the  defendant  unlawfully  sold  intoxicating  liquor  with- 
in the  county  and  state.  It  is  not  necessary  to  describe  the 
kind  of  liquor  sold  or  to  name  the  person  to  whom  the  sale 
was  made,  or  to  describe  the  offense  with  more  particularity 
in  any  other  respect.  The  fact  that  such  a  violation  of 
law  is  aggravated  in  punishment  by  a  previous  conviction, 
or  become  an  element  of  a  crime  of  a  higher  grade,  does 
not  affect  in  any  way  the  method  of  pleading. 
State  v.  King,  92  Kan.  669,  141  Pac.  247. 

A  demurrer  to  an  indictment  for  the  sale  of  intoxicating 
liquors  made  to  one  Jim  Allen,  because  it  did  not  state 
whether  Allen  was  white  or  colored,  or  at  what  point  the 
sale  was  consummated  in  the  county  where  the  transaction 
was  alleged  to  have  taken  place  (and  hence  that  the  defend- 
ant was  not  sufficiently  informed  to  enable  him  to  properly 
defend  against  the  charge)  was  properly  overruled. 
Pines  v.  State,  15  Ga.  App.  348,  83  S.  E.  198. 

An  indictment  charging  a  wrongful  sale  of  intoxicating 

liquor  was  not  demurrable  for  failure  to  allege  a  delivery. 

Clopton  v.  Commonwealth,  109  Va.  813,  62  S.  E.  1022. 

An  accusation  which  charges  that  the  accused  did,  on  a 
named  date,  in  the  county  of  the  prosecution,  "sell  and  bar- 
ter for  a  valuable  consideration,  both  directly  and  indirectly, 
alcoholic,  spirituous,  malt,  and  intoxicating  liquors,  intoxi- 
cating bitters,  and  other  drinks  which,  if  drunk  to  excess 
will  produce  intoxication,"  is  not  subject  either  to  general 
demurrer  or  to  special  demurrer  on  the  ground  that  it  does 
not  set  out  the  offense  charged  with  sufficient  definiteness. 
Brown  v.  State,  8  Ga.  App.  691,  70  S.  E.  40. 

—18 


274  TITLE  II— SEC.  32  OF  ACT 

But  where  the  warrant  and  accompanying  affidavit  charg- 
ing an  unlawful  sale  of  liquor  do  not  show  whether  the 
sale  was  in  violation  of  the  state  law  or  a  municipal  ordi- 
nance, no  valid  judgment  can  be  pronounced. 

State  v.  Lunsford,  150  N.  C.  862,  64  S.  E.  765. 

The  sufficiency  of  specifications  in  a  prosecution  for  il- 
legal liquor  selling  is  a  matter  of  discretionary  determina- 
tion with  the  trial  court. 

State  v.  Truba,  88  Vt.  557,  93  Atl.  293. 

Averment  of  Fact  as  to  Agency. — In  an  indictment 
charging  one  with  selling  liquor  in  violation  of  law,  it  is  not 
necessary  to  set  forth  whether  the  accused  was  acting  as 
principal  or  agent,  as,  if  the  accused  made  the  sale,  he  would 
naturally  be  in  possession  of  the  knowledge  as  to  his  ca- 
pacity at  the  time  of  the  offense. 

State  v.  John,  129  La.  208,  55  So.  766. 

Charging  Sale  to  "S.  and  Others" — Demurrable.— 

An  information  alleging  a  wrongful  sale  of  intoxicating 
liquors  to  "S.  and  others,"  was  improper,  in  that  it  failed  to 
allege  who  the  others  were,  or,  if  not  known,  that  they  were 
unknown  but  in  the  absence  of  demurrer  was  sufficient  to 
support  a  conviction  on  proof  of  a  joint  sale. 

State  v.  Julius,  29  S.  D.  638,  137,  137  N.  W.  590. 

Charging  Druggist  with  Unlawful  Sale. — Under  a 
Local  Option  Act,  making  it  unlawful  to  sell  intoxicating 
liquors  in  anti-saloon  territory  but  permitting  regularly  li- 
censed druggists  to  sell  liquor  for  medicinal  purposes  in 
good  faith,  on  written  prescription  of  a  duly  licensed  physi- 
cian in  active  practice,  an  information  charging  a  licensed 
druggist  with  unlawfully  selling  liquor  in  anti-saloon  terri- 
tory must  identify  the  offense  relied  fully  sold,  bartered 
and  exchanged  liquor  in  anti-saloon  territory  is  sufficient. 
Fehringer  v.  People,  59  Colo.  3,  147  Pac.  361. 

Habitual  Sales. — When  the  facts  set  forth  in  an  indict- 
ment clearly  charge  in  substance  and  effect  the  habitual  sale 
of  intoxicating  liquors  contrary  to  law,  it  is  valid  under  a 
law  requiring  indictment  for  maintaining  a  liquor  nuisance 


TITLE  II— SEC.  32  OF  ACT  275 

to  be  in  form  of  indictment,  for  unlawful  sale,  though  the 
word  ''habitual"  is  not  employed. 

State  v.  Matarazza  (N.  J.  Sup.),  107  Atl.  266. 

Charging  Engaged  in  Business.— Though  the  consti- 
tution gives  the  right  to  demand  the  nature  and  cause  of  the 
accusation,  an  information  charging  that  defendant  unlaw- 
fully engaged  in  the  business  of  selling  intoxicating  liquors 
sufficiently  informed  him  of  the  nature  of  the  offense 
charged,  although  it  was  not  alleged  that  the  offense  was 
committed  through  agents,  since  the  constitutional  provi- 
sion does  not  require  the  state  to  inform  a  defendant  of  the 
particular  evidentiary  means  the  state  will  use  to  establish 
the  guilt  of  defendant. 

State  v.  Otto,  38  S.  D.  353,  161  N.  W.  340. 

"A  citizen  cannot  be  successfully  prosecuted  under  a 
charge  of  engaging  generally  in  the  unlawful  business  of 
selling  whisky.  For  various  and  altogether  sufficient  reasons, 
in  a  charge  of  that  character,  there  must  be  allegation  and 
proof  of  specific  conduct  constituting  a  breach  of  the  crim- 
inal law  (State  v.  Tisdale,  145  N.  C.  422,  58  S.  E.  998,  13 
Ann.  Cas.  125),  a  requirement  guaranteed  by  our  constitu- 
tion and  necessary  in  common  fairness  to  enable  a  defend- 
ant to  properly  prepare  his  defense  and  to  protect  him  from 
a  second  prosecution  on  the  same  state  of  facts." 
State  v.  Allen,  161  N.  C.  226,  75  S.  E.  1082. 

Charging  Common  Nuisance. — An  indictment  charg- 
ing that  accused  at  specified  times  maintained  a  specified 
place  used  for  illegal  sale  and  illegal  keeping  of  liquors, 
where  liquors  were  sold  for  tippling  places,  and  that  the 
place  was  a  resort  where  liquors  were  sold,  given  away, 
drunk,  and  dispensed  and  a  common  nuisance,  etc.,  is  suffi- 
cient under  Rev.  St.  c.  22  1,  2,  defining  common  nuisances, 
and  prescribing  punishment  for  keeping  them. 
State  v.  Fogg,  107  Me.  177,  77  Atl.  714. 

Charging  Offense  of  Acting  as  Agent  or  Assistant 
in  Selling. — An  indictment,  charging  that  defendant  sold, 
offered  for  sale,  kept  for  sale,  or  otherwise  disposed  of  pro- 
hibited liquors,  is  sufficiently  broad  to  charge  the  offense 


276  TITLE  II— Sec.  32  OF  ACT 

under  a  statute  providing  that  any  person,  who  shall  act  as 
agent  or  assisting  friend  of  either  seller  or  buyer  in  procur- 
ing an  unlawful  sale  of  intoxicating  liquors  shall  be  pun- 
ishable as  if  he  had  sold  the  prohibited  liquors. 

Rogers  v.  State  (Ala.  App.),  73  So.  994. 

Charging  Subterfuge  for  Sale. — When  the  state  relies 
on  giving  away  or  otherwise  furnishing  intoxicating  liquor 
as  a  subterfuge  for  a  sale,  the  fact  must  be  pleaded  in  or- 
der that  the  court  might  determine  whether  or  not  a  crime 
has  been  committed. 

Jenkins  v.  State,  11  Okla.  Cr.  App.  168,  145  Pac.  500. 

Giving  Prescription  Illegally. — An  indictment  for  ille- 
gally issuing  a  prescription  for  intoxicating  liquor  was  suf- 
ficient, where  the  prescription  was  described  in  such  man- 
ner that  the  court  by  inspection  might  pronounce  whether 
it  was  such  an  instrument  as  might  be  the  basis  of  the  of- 
fense charged  and  it  was  not  necessary,  after  this  to  set  it 
out  in  haec  verba. 

McAllister  v.  State,  156  Ala.  122,  47  So.  161. 

Transporting  "in"  or  "into."— If  the  word  "in"  had 
been  used  without  the  word  "into"  in  information  charg- 
ing the  defendant  with  transporting  whisky  "into  and  in  the 
state  and  county,"  the  charge,  though  imperfect,  would  have 
been  sufficient  to  sustain  conviction  for  transporting  from 
one  place  to  another  within  the  state,  if  no  objections  had 
been  made. 

Whitley  v.  State  (Ark.),  215  S.  W.  703. 

An  indictment,  charging  that  liquors  were  unlawfully 
transported  into  prohibited  territory,  would  sufficiently 
charge  an  offense  to  suffice,  on  application  for  habeas  corpus, 
unless  there  was  no  law  on  which  the  prosecution  could  be 
founded.  (Per  Morrow,  J.) 

Ex  parte  Fulton  (Tex.  Cr.  App.),  215  S.  W.  331. 

Indictments  against  a  railroad  which  did  not  allege  that 
the  consignees,  to  whom  liquors  were  alleged  to  have  been 
transported  and  delivered  by  the  road  in  dry  territory,  were 
neither  dealers,  brewers,  nor  wholesale  dealers,  transporta- 


TITLE  II— SEC.  32  OF  ACT  277 

tion  to  which,  without  certain  information  on  the  package, 
was  permissible  under  the  statute,  do  not  state  an  offense. 
Commonwealth  v.  Louisville,  etc.,  R.  Co.  (Ky  )    215  S 
W.  938. 

Charge  that  defendants  unlawfully  transported  over  pub- 
lic highway  in  dry  county  certain  intoxicating  liquors  in 
violation  of  statute  did  not  charge  offense  under  Florida 
statute  making  it  "unlawful  for  any  common  or  other  car- 
rier to  transport  any  intoxicating  liquors  over  highways  of 
this  state  into  any  county,"  etc.,  as  non  constat  defendant 
was  transporting  liquors  through,  and  not  into,  dry  terri- 
tory, and  because  not  alleging  that  he  was  transporting  them 
as  a  common  carrier. 

Foxworth  v.  Law  (Fla.),  82  So.  55. 

Under  Virginia  Prohibition  Act  (Acts  1916,  c.  146)  §  39, 
the  phrases  "for  use  in  this  state"  and  "for  sale"  are  not  es- 
sential ingredients  of  the  offense  of  bringing  liquor  into  the 
state  nor  for  transporting  from  one  point  to  another  in  the 
state,  and  need  not  be  alleged  in  an  indictment. 

Burton  v.  Commonwealth,  122  Va.  847,  94  S.  E.  923. 

Averment  of  Attempt. — An  indictment  for  attempting 
to  introduce  intoxicating  liquor  into  the  state  of  Arizona 
under  Const,  art.  23,  §  1,  must  aver  the  ultimate  facts  con- 
stituting the  offense,  i.  e.,  the  intention  of  accused  to  pass 
such  liquors  into  the  state  from  another  state  or  from  a 
foreign  country,  a  direct  act  done  in  furtherance  of  such 
intention,  and  the  failure  of  the  attempt  due  to  some  in- 
tervening cause  beyond  the  control  of  accused. 

Baca  v.  State,  18  Ariz.  350,  161  Pac.  686. 

A  presentment  for  transporting  intoxicating  liquor  in  vio- 
lation of  statute,  is  not  bad  because  it  omits  the  word  "per- 
sonally" in  describing  the  transporting. 

Liquor  Transp.  Cases  v.  State,  140  Tenn.  (13  Thomp- 
son) 582,  205  S.  W.  423,  424. 

Introducing  Liquor  into  Indian  Country. — In  view  of 
Rev.  St.  §  1025  (U.  S.  Comp.  St.  1916,  §  1691),  declaring 
that  no  indictment  shall  be  deemed  insufficient  by  reason  of 


278  TITLE  II— SEC.  32  OF  ACT 

any  defect  or  imperfection  in  the  matter  of  form  only,  an 
indictment  charging  that  accused,  "in  the  county  of  Jeffer- 
son, state  of  Oklahoma,  in  the  district  and  within  the  ju- 
risdiction of  said  court,  did  *  *  *  unlawfully,  know- 
ingly, willfully,  and  feloniously  introduce  and  carry  into 
the  county  and  district  from  without  the  state  of  Oklahoma 
*  *  *  intoxicating  liquor,  *  *  *  the  portion  of  the 
county  and  district  into  which  the  liquor  was  so  introduced 
having  been  within  the  limits  of  the  Indian  Territory  and 
a  part  thereof  prior  to  admission,"  must  be  deemed  suffi- 
cient to  charge  the  offense  of  introducing  from  without  in- 
toxicating liquor  into  that  portion  of  the  state  of  Oklahoma 
which  was  formerly  the  Indian  Territory,  for,  while  the  in- 
dictment was  subject  to  criticism  as  to  form,  it  was  suffi- 
cient to  advise  accused  of  the  offense  with  which  he  was 
charged,  and  in  event  of  conviction  would  have  supported 
a  plea  of  former  jeopardy. 

Dosset  v.  United  States,  161  C.  C.  A.  20,  248  Fed.  902. 

19.  AMENDMENTS. 

Charge  of  Additional  and  Distinct  Offense.— An  act 
providing  that  the  affidavit  or  complaint  in  a  prosecution 
for  violating  laws  to  suppress  intemperance  may  be  amended 
to  meet  the  ends  of  justice  for  any  informality,  irregularity, 
or  technicality,  does  not  authorize  the  amendment  of  an  af- 
fidavit charging  a  complete  offense  and  giving  defendant  no- 
tice of  the  accusation  as  required  by  Const.  1901,  §  6,  so  as 
to  charge  an  additional  and  distinct  offense. 
Echols  v.  State  (Ala.  App.),  75  So.  814. 

Striking  Out  Name. — In  a  prosecution  for  maintaining 
an  unlawful  drinking  place  where  the  affidavit  charged  that 
the  offense  was  committed  by  one  Jim  Kirk,  alias  Scrap,  the 
allowance  of  a  trial  amendment  by  the  solicitor,  which  con- 
sisted of  the  striking  out  of  the  name  James  Kirk,  was  not 
error. 

Kirk  v.  State,  10  Ala.  App.  216,  65  So.  195. 

Inserting  Name. — A  petition,  headed  "State  of  Georgia, 
Whitfield  County,"  directed  "To  the  Superior  Court  of  Said 
County,"  and  regularly  filed  with  clerk  of  that  court,  charg- 


TITLE  II— SEC.  32  OF  ACT  279 

ing  that  a  described  car  was  property  of  defendant,  of  Ca- 
toosa  County,  and  was  being  unlawfully  used  by  him,  and  by 
others  with  his  knowledge  and  consent,  in  unlawfully  trans- 
porting liquors  through  said  county,  was  properly  amended 
by  inserting,  after  latter  word  "county,"  the  words  "of  Whit- 
field." 

Burgan  v.  State  (Ga.  App.),  99  S.  E.  636. 

Changing  Place  to  Which  Liquor  Conveyed. — Amend- 
ment of  information  for  unlawfully  transporting  intoxicat- 
ing liquor,  made  on  motion  of  county  attorney,  changing 
place  to  which  liquor  was  alleged  to  have  been  conveyed 
from  intersection  of  Western  and  G.  avenues  to  a  place 
about  a  quarter  of  a  mile  west  of  that  intersection,  did  not 
materially  change  offense  charged  in  original  information. 

Thayer  v.  State  (Okla.  Cr.  App.),  183  Pac.  931. 

To  Conform  to  Proof. — Where  information  charged 
defendant  with  transporting  whisky  "into  and  in  the  state 
and  county,"  and  the  case  was  submitted  on  issue  of  trans- 
portation from  one  place  to  another  in  the  state,  the  infor- 
mation could  have  been  amended  or  treated  as  an  amend- 
ment to  conform  to  the  proof. 

Whitley  v.  State  (Ark.),  215  S.  W.  703. 

Arrest. 

Without  Warrant. — An  officer  may  not  arrest  for  a 
misdemeanor  without  a  warrant  on  information  or  suspi- 
cion, unless  the  misdemeanor  was  actually  committed  in  his 
presence;  and  hence  an  arrest  was  not  justifiable,  though 
the  officer  suspected  that  the  person  arrested  had  intoxicat- 
ing liquors  in  his  suit  case,  in  violation  of  the  law  prohibit- 
ing the  illegal  manufacture,  transportation,  and  sale  of  such 
liquors. 

Caffinni  v.  Hermann,  112  Me.  282,  91  Atl.  1009. 

Force  Allowable. — And  even  conceding  that  officers 
may  be  authorized  to  arrest  without  warrant  that  author- 
ity includes  the  lawful  power  to  use  only  such  force  as  an 
ordinarily  prudent  and  intelligent  person,  with  knowledge 


280  TITLE  II— SEC.  32  OP  ACT 

and  in   situation   of   arresting  officer,   would  have  deemed 
necessary. 

Castle  v.  Lewis  (C.  C.  A.),  254  Fed.  917,  918. 

Blanket  Warrant. — The  warrant  in  a  prosecution  for 
the  unlawful  sale  of  intoxicating  liquors  cannot  be  made  a 
blanket  for  all  future  offenses  within  its  purview. 

Robinson  v.  Commonwealth,  118  Va.  785,  87  S.  E.  553. 

m.  Defenses. 

Intent. — The  matter  of  intent  is  not  involved  in  accusa- 
tion of  selling  intoxicating  liquor,  and  defendant  would  be 
guilty  if  he  or  any  one  for  him  actually  sold  intoxicants  on 
the  premises,  whether  defendant  intended  to  do  so  or  not. 

State  v.  Fountain  (la.),  168  N.  W.  285. 

Carty  v.  State,  135  Ark.  169,  204  S.  W.  207. 

People  v.  Emmons,  178  Mich.  126,  144  N.  W.  479,  Ann. 

Cas.  1915D,  425. 
Hall  v.  State,  7  Ga.  App.  186,  66  S.  E.  486. 

So  that  the  sale  of  a  beverage  containing  5,  6  per  cent 
alcohol  at  a  soft  drink  counter  in  a  local  option  district 
was  a  violation  of  the  act  though  defendant  had  been  in- 
formed and  believed  that  it  contained  no  alcohol,  and  did 
not  intend  to  violate  the  law. 

People  v.  Hatinger,  174  Mich.  333,  140  N.  W.  648. 

Under  a  constitution  declaring  that  every  person  who 
sells  any  intoxicating  liquor  shall  be  guilty  of  a  misdemean- 
or, and  a  statute  defining  the  classes  of  persons  capable  of 
committing  crimes  which  excepts  those  who  commit  the 
act  under  a  mistake  of  fact  which  disproves  any  criminal 
intent,  where  accused,  charged  with  selling  intoxicating  liq- 
uors, asserted  that  he  did  not  know  of  the  intoxicating  na- 
ture of  the  liquors,  it  was  held  that  while  as  respects  crimes 
involving  moral  turpitude,  criminal  intent  or  guilty  knowl- 
edge is  an  essential  element,  that  rule  does  not  apply  to  a 
violation  of  the  prohibition  amendment. 

Troutner  v.  State,  17  Ariz.  506,  154  Pac.  1048,  L.  R.  A. 
1916D,  262. 


TITLE  II— SEC.  32  OF  ACT  281 

"Where  one  is  charged  with  keeping  on  hand  intoxicat- 
ing liquor  at  a  place  of  business  or  at  a  public  place,  it  is 
immaterial  for  what  purpose  the  liquor  was  there  kept,  or, 
in  other  words,  what  may  have  been  the  intent  of  the  de- 
fendant, since  'the  criminal  act  is  the  keeping  on  hand.' 
Cohen  v.  State,  7  Ga.  App.  5,  65  S.  E.  1096.  Merely  to  al- 
low liquors  to  be  deposited  in  one's  place  of  business  under 
peculiar  circumstances,  followed  by  an  immediate  removal 
of  them,  might  not  constitute  a  violation  of  the  statute. 
Cassidy  v.  State,  10  Ga.  App.  123,  72  S.  E.  939." 
Griffin  v.  State,  15  Ga.  App.  552,  83  S.  E.  871. 

The  belief  of  one  accused  of  selling  ardent  spirits  with- 
out a  license  as  to  the  character  of  the  beverage  sold,  or  his 
intention  to  violate  the  law,  is  not  material  in  determining 
his  guilt. 

Bracy  v.  Commonwealth,  119  Va.  867,  89  S.  E.  144. 

Intention  Not  to  Transfer  Right  of  Property  or 
Possession. — There  was  no  illegal  sale  or  giving  away  of 
intoxicating  liquor,  unless  the  delivery  of  the  liquor  was 
accompanied  by  an  intention  to  transfer  the  right  of  prop- 
erty and  possession  thereon  for  or  without  a  consideration. 
O'Brien  v.  State,  3  Ala.  App.  173,  57  So.  1028. 

In  view  of  Alabama  Acts  1909,  Sp.  Sess.  p.  91,  §  31, 
providing  that  the  term  "otherwise  disposed  of"  following 
the  words  "sold  and  offered  for  sale,"  etc.,  when  used  in 
any  indictment,  shall  include  a  barter,  exchange,  giving 
away,  furnishing,  or  other  manner  of  disposition,  the  de- 
livery of  a  bottle  of  whisky  by  accused  to  an  acquaintance 
to  keep  for  him  while  accused  went  before  the  grand  jury 
to  testify  would  not  support  an  indictment  charging  that 
he  sold  or,  otherwise  disposed  of  intoxicants  contrary  to 
law,  in  absence  of  a  showing  that  he  intended  or  consented 
that  such  acquaintance  could  use  some  part  of  the  liquor. 
O'Brien  v.  State,  3  Ala.  App.  173,  57  So.  1028. 

That  Imported  Liquor  Was  Intended  for  Accused's 
Own  Use. — Where  the  constitution  prohibiting  the  sale  of 
intoxicating  liquors  or  the  introduction  into  the  state  does 
not  make  the  drinking  of  intoxicants  an  offense,  the  intro- 


282  TITLE  II— SEC.  32  OF  ACT 

duction  into  the  state  of  intoxicating  liquors  intended  for 

accused's  own  use  is  not  an  offense  and  the  fact  that  they 

were  intended  for  his  own  use  may  be  shown  as  a  defense. 

Sturgeon  v.  State,  17  Ariz.  513,  154  Pac.  1050,  L.  R. 

A.  1917B,  1230. 

Carrying  for  Another. — "To    an    indictment    charging 
unlawful  carriage  of  liquors  for  another  it  is  not  a  suffi- 
cient defense  that  the  carrier  is  the  parent  or  guardian  of 
a  minor  for  whom  the  transportation  was  made." 
State  v.  Duff,  81  W.  Va.  407,  94  S.  E.  498,  499. 

Non-Intoxicating  Character  of  Liquor. — No  ac- 
quittal of  the  charge  of  selling  liquor  could  be  directed  in 
case  the  jury  found  that  the  person  receiving  the  liquor 
would  not  ibe  intoxicated  thereby.  The  only  defense 
would  be  that  no  person  could  receive  any  intoxicating  ef- 
fect therefrom;  or  in  other  words,  that  it  was  not  beer  of 
the  sort  which  congress  had  in  mind  in  using  the  word  "beer" 
in  the  meaning  of  that  word  as  used  at  the  time  of  the 
passing  of  the  act — in  other  words,  any  kind  of  malt 
beer,  which  was  in  legal  sense  an  "intoxicating  liquor"  as 
congress  and  public  usage  understood  the  term. 

United  States  v.  Schmauder  (D.  C.),  258  Fed.  251. 

Entrapment. — That  a  seaman  in  uniform  encouraged 
and  incited  a  defendant  to  sell  him  liquor  for  the  purpose  of 
obtaining  evidence  against  him  is  not  a  bar  to  the  prosecu- 
tion, where  the  act  was  done  because  of  prior  complaints 
of  violation  of  the  law  by  defendant. 

Fetters  v.  United  States  (C.  C.  A.),  260  Fed.  142. 

As  said  in  another  case:  "But  something  more  than  the 
mere  use  of  decoys  or  detectives  by  the  government  is 
necessary  to  raise  an  issue  of  estoppel.  Grimm  v.  United 
States,  156  U.  S.  604,  15  Sup.  Ct.  470,  39  L.  Ed.  550; 
Goode  v.  United  States,  159  U.  S.  663,  16  Sup.  Ct.  136,  40 
L.  Ed.  297.  There  must  be  deception  of  such  a  character 
as  to  make  it  unconscionable  for  the  government  to  press 
its  case." 

Goldstein  v.  United  States   (C.  C.  A.),  256  Fed.  813, 
815. 


TITLE  II— SEC.  32  OF  ACT  283 

Misleading  Defendant  to  Believe  Act  Lawful. 
— The  selling  of  liquor  to  an  Indian,  in  violation  of  Rev 
St.  §  1,  2139  (Comp.  St.  1916,  §  4136a),  and  Act  Jan.  30^ 
1897,  c.  109,  §  1,  29  Stat.  506  (Comp.  St.  1916,  §  4137),  is 
an  offense  malum  prohibitum,  of  which  the  intent  or  knowl- 
edge of  the  seller  is  not  an  element,  and  is  immaterial ;  but 
the  government  cannot  maintain  an  indictment  for  such 
offense,  when  by  its  own  conduct,  through  its  agents,  it 
misled  the  defendant  into  believing  that  the  act  was  law- 
ful, as  that  the  purchaser  was  not  an  Indian,  but  a  Mexican. 

Voves  v.  States,  161  C.  C.  A.  227,  249  Fed.  191. 

Former  Acquittal  or  Conviction.— The  offense  of  keep- 
ing intoxicating  liquors  for  sale,  which  is  charged  as  being 
committed  between  certain  dates,  is  a  continuing  offense  as 
to  such  time  and  an  acquittal  under  such  an  information 
will  be  a  bar  to  a  subsequent  prosecution  for  a  sale  as  a 
beverage  within  such  dates. 

State  v.  Lesh,  27  N.  D.  165,  145  N.  W.  829. 

And  under  a  statute  declaring  certain  places  to  be  com- 
mon nuisances,  a  conviction  for  keeping  bars  other  prose- 
cution under  the  sale  section  for  the  period  covered  by  the 
indictment. 

State  v.  Arsenault,  106  Me.  192,  76  Atl.  410. 

Where  accused,  who  was  indicted  for  selling  spirituous 
liquor  to  one  M.  on  the  15th  of  November,  had  previously 
been  indicted  for  a  sale  on  December  5th,  and  in  both  cases 
M.  testified  that  accused  had  frequently  sold  him  whisky 
but  he  could  not  give  the  dates  of  any  of  the  sales,  it  was 
held  that,  as  the  time  charged  in  the  indictment  was  imma- 
terial, the  acquittal  in  the  first  prosecution  was  a  bar  to  the 
second:  it  being  apparent  that  the  evidence  necessary  to 
support  the  second  indictment  would  have  been  sufficient  to 
convict  the  defendant  under  the  first. 

State  v.  Freeman,  162  N.  C.  594,  77  S.  E.  780,  45  L. 
R.  A.,  N.  S.,  977n. 

"Whether  all,  several  of,  or  only  one  of  the  legal  require- 
ments is  disobeyed  by  the  carrier  in  a  single  delivery  of 
liquor  to  the  single  consignee,  it  will  and  does  constitute 


284  TITLE  II— SEC.  32  OF  ACT 

,but  a  single  offense  under  the  statute.  Manifestly,  if  in  a 
penal  action  or  indictment  against  the  carrier  for  a  viola- 
tion of  one  of  the  provisions  of  the  section  in  question  or 
of  a  specified  number  of  them  short  of  the  whole,  com- 
mitted in  a  single  delivery  of  liquor  to  the  consignee,  the 
conviction  or  acquittal  of  the  defendant  results,  such  car- 
rier could  not,  in  another  penal  action  or  under  another  in- 
dictment growing  out  of  the  same  delivery  of  liquor,  be 
convicted  of  a  violation  of  other  provisions  of  the  section 
than  those  for  which  he  was  tried  in  the  prosecution  first 
disposed  of.  The  judgment  in  the  first  prosecution  would 
bar  a  conviction  in  the  second." 

Adams  Exp.  Co.  v.  Commonwealth,  182  Ky.  748,  207 
S.  W.  482,  483. 

After  Election  by  State. — Where  the  state  elected  to 
try  its  prosecution  for  illegally  selling  intoxicants  as  for  an 
unlawful  sale  to  a  particular  person,  the  choice  being  prop- 
erly induced,  having  been  made  a  matter  of  public  record,  the 
conviction  can  be  pleaded  in  bar  to  any  further  prosecution 
for  a  sale  on  such  occasion  to  such  person. 

State  v.  Wilbur  (Ore.),  166  Pac.  51. 

Conviction  on  One  Count  as  Acquittal  on  Other 
Counts. — Where  defendant  was  convicted  of  one  count  of 
a  complaint  for  violation  of  prohibition  law,  this  was  an 
acquittal  as  to  charge  embodied  in  other  counts. 

Oldacre  v.  State  (Ala.  App.),  75  So.  827. 

But  verdict  of  not  guilty  of  the  offense  charged  by  the 
first  count  of  the  indictment,  the  illegal  sale  of  intoxicating 
liquors,  does  not  bar  another  trial  under  the  second  count, 
charging  that  he  was  an  accessory  to  such  a  sale  by  another, 
if  there  were  errors  in  the  proceedings  calling  for  reversal. 

Harris  v.  State  (Ark.),  215  S.  W.  620. 

Subsequent  Prosecution  for  Different  Offense. — A 
plea  that  the  accused  had  been  tried  and  acquitted  for  fur- 
nishing liquor  to  a  minor  constituted  no  bar  to  a  subsequent 
prosecution  for  selling  liquor  illegally. 

Webb  v.  State,  13  Ga.  App.  733,  80  S.  E.  14. 


TITLE  II— SEC.  32  OF  ACT  285 

And  though  on  prosecution  for  sale  of  intoxicating  cider 

to  M.,  on  the  issue  of  the  cider  being  intoxicating,  others 

testified  to  sales  to  them  of  intoxicating  cider,  the  acquttal 

is  not  available  on  subsequent  prosecution  for  sale  to  them. 

Turner  v.  State,  130  Ark.  48,  196  S.  W.  477. 

Different  Jurisdictions.— In  a  prosecution  for  illegally 
making  alcoholic  liquors,  a  plea  that  defendant  had  pleaded 
guilty  in  the  United  States  District  Court  for  violating  the 
internal  revenue  laws  was  not  good  as  a  plea  of  former 
jeopardy;  the  crimes  being  distinct  and  the  jurisdictions  be- 
ing different. 

Tharpe  v.  State  (Ga.  App.),  100  S.  E.  754. 

Charge  of  Crime  and  Contempt  Different. — One  en- 
joined from  sale  of  intoxicating  liquors  and  maintenance  of 
a  nuisance,  by  a  contempt  proceeding  for  violation  of  the 
decree,  is  not  thereby  put  in  jeopardy  twice  for  the  same 
offense,  as  in  one  case  he  is  punished  for  a  crime,  and  in 
the  other  for  a  contempt  of  court. 

State  v.  Kurent  (Kan.),  184  Pac.  721. 

Different  Charges. — Defendant  acquitted  of  charge  of 
unlawfully  keeping  intoxicating  liquors  is  not  put  in  jeop- 
ardy a  second  time  by  prosecution  for  permitting  another 
to  keep  intoxicating  liquors  on  premises  controlled  by  de- 
fendant, though  the  time  and  place  of  each  offense  were 
charged  to  be  the  same. 

State  v.  Macek,  104  Kan.  742,  180  Pac.  985. 

Adjudication  in  Search  Warrant  Proceedings. — Ad- 
judication in  search  warrant  proceedings  in  a  justice's 
court  that  liquors  in  a  drug  store  were  not  kept  for  illegal 
sale  did  not  acquit  of  any  offense  one,  who  voluntarily  ap- 
peared under  Code  Supplemental  Supp.  §  2415,  as  the 
owner,  so  as  to  render  Acts  37th  Gen.  Assem.  c.  322,  §  2, 
granting  the  state  a  right  to  appeal  in  such  proceedings, 
unconstitutional  as  violating  Const,  art.  1,  §  12,  prohibit- 
ing a  second  jeopardy  for  the  same  offense ;  search  warrant 
proceedings  being  merely  quasi  criminal. 

State  v.  Taggart  (la.),  172  N.  W.  299. 


286  TITLE  II— SEC.  32  OF  ACT 

IV.  Jurisdiction. 

Cannot  Be  Conferred  by  Consent. — As  jurisdiction 
cannot  be  conferred  by  consent,  especially  in  criminal  cases, 
a  stipulation  that  the  court  had  jurisdiction  in  a  prosecution 
for  unlawfully  selling  liquor  is  unavailing,  where  the  other 
stipulated  facts  necessarily  showed  that  it  was  without  ju- 
risdiction because  the  sale  occurred  in  another  county. 
People  v.  Meloche,  186  Mich.  536,  152  N.  W.  918. 

Jurisdiction  of  Sale  by  Letter. — Where  a  sale  of  in- 
toxicating liquor  is  solicited  by  a  communication  written 
or  printed,  and  mailed  in  one  state,  as  no  crime  is  com- 
mitted until  the  delivery  of  the  letter  in  the  state  where 
such  solicitation  is  forbidden,  the  courts  of  the  county 
where  the  letter  is  received  by  the  addressee  of  such  letter 
and  its  contents  are  ascertained  have  jurisdiction  of  such 
offense. 

Rose  v.  State,  4  Ga.  App.  588,  62  S.  E.  117. 

At  Place  of  Shipment. — "When  intoxicating  liquors 
are  delivered  for  shipment  or  shipped,  or  when  they  are 
received  for  shipment  to  be  carried  into  dry  territory,  the 
offense  is  committed  in  the  place  of  the  shipment." 

State  v.  Lieber,  143  La.  158,  78  So.  431. 

V.  Continuance. 

Where  defendant  and  his  brother  were  both  charged  with 
having  possession  of  intoxicating  liquor  for  the  purpose  of 
sale,  defendant  is  not  entitled  to  a  continuation  because  the 
judge  before  whom  he  was  tried  was  the  same  as  the  one 
who  tried  defendant's  brother  a  week  previous. 

State  v.  Baldwin  (N.  C.),  100  S.  E.  348. 

In  a  prosecution  for  the  unlawful  sale  of  intoxicants, 
where  the  state  relied  on  a  sale  at  a  different  time  from 
that  laid  in  the  indictment,  accused,  to  be  entitled  to  a  con- 
tinuance, must  have  moved  therefor  at  the  earliest  possible 
moment  and  failure  to  do  so  until  after  a  verdict  is  a 
waiver  of  the  right. 

Peebles  v.  State,  105  Miss.  834,  63  So.  27. 


TITLE  II— SEC.  32  OF  ACT  287 

VI.  Election  between  Offenses  Charged. 

Where  the  evidence  tended  to  prove  defendant  guilty 
of  each  of  several  offenses  charged  in  the  alternative  in  a 
single  count,  under  which  defendant  could  be  convicted  of 
only  one  of  the  offenses,  he  was  entitled,  before  putting 
in  his  defense,  to  require  the  state  to  elect  the  offense  on 
which  it  would  rely  for  a  conviction. 

Warrick  v.  State,  8  Ala.  App.  391,  62  So.  342. 
See  also  Moss  v.  State,  3  Ala.  App.  189,  58  So.  62. 

But  where,  under  indictment  charging  illegal  sale  and 
offering  for  sale  of  intoxicating  liquors,  both  the  sale  and 
possession  were  proved  as  arising  from  a  single  transac- 
tion, it  was  not  error  to  refuse  to  compel  the  state  to 
elect. 

Herring  v.  State  (Ala.  App.),  75  So.  646. 

Each  sale  of  whisky  is  a  separate  and  distinct  offense  for 
which  accused  may  be  convicted. 

State  v.  Kelly,  89  S.  C.  303,  71  S.  E.  987. 

And  under  an  indictment  charging  that  defendant  sold, 
offered  for  sale,  kept  for  sale,  or  otherwise  disposed  of 
spirituous,  vinous,  or  malt  liquors  contrary  to  law,  evidence 
of  any  of  the  offenses  charged  alternatively  may  be  ad- 
mitted and  the  state  is  not  required  to  elect  upon  which 
of  the  charges  it  will  rely  for  conviction. 

Spigener  v.  State,  11  Ala.  App.  296,  66  So.  896. 

Upon  the  trial  of  an  indictment  for  the  unlawful  sale  of 
intoxicating  liquors,  the  state  may  offer  evidence  of  more 
than  one  sale  to  the  same  person,  and  the  defendant  can- 
not compel  an  election,  although  it  is  within  the  discretion 
of  the  court  to  allow  the  motion. 

State  v.  Freeman,  162  N.  C.  594,  77  S.  E.  780,  45  L.  R. 

A.,  N.  S.,  97'7n. 
See  also,  State  v.  Cardwell,  166  N.  C.  309,  81  S.  E.  628. 

\Yhere  the  statute  permits  more  than  one  offense  against 
the  prohibition  law  to  be  charged  in  a  single  count,  defend- 
ants have  no  absolute  right  to  demand  an  election  of  the 


288  TITLE  II— SEC.  32  OF  ACT 

offense  to  be  prosecuted,  but  it  is  within  the  discretion  of 
the  trial  court  whether  an  election  will  be  required. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652,  653. 

See  also,  Allison  v.  State,  1  Ala.  App.  206,  55  So.  453. 

And  where  in  a  prosecution  for  violating  the  prohibitory 
law,  the  state's  solicitor  elected  to  ask  a  conviction  under 
the  second  count  of  the  indictment  for  maintaining  an  un- 
lawful drinking  place  during  October  1911,  and  prior  to  the 
27th  day  thereof,  defendant  was  not  entitled  to  a  further 
election  of  the  particular  day  during  that  month  on  which 
the  alleged  offense  was  committed;  the  offense  charged  be- 
ing one  that  might  consist  of  and  be  evidenced  by  a  series 
of  acts  or  a  continuous  course  of  conduct  extending  over  a 
period  of  more  than  a  single  day. 

Warrick  v.  State,  8  Ala.  App.  391,  62  So.  342. 

Where  the  indictment  charged  that  defendant  sold,  of- 
fered for  sale,  kept  for  sale,  or  otherwise  disposed  of  pro- 
hibited liquors,  but  the  evidence  showed  only  one  transac- 
tion and  one  offense,  there  is  no  occasion  for  an  election. 
Rogers  v.  State  (Ala.  App.),  73  So.  994. 

But  under  Ark.  Act  Feb.  6,  1915  (Laws  1915,  p.  98), 
declaring  that  it  shall  be  unlawful  for  any  person  to  manu- 
facture, sell,  or  give  away,  or  be  interested  in  the  manufac- 
ture, sale,  or  giving  away  of,  alcoholic  liquors,  etc.,  the  mak- 
ing of  wine  and  the  selling  of  wine  are  two  distinct  offenses, 
and  when  charged  conjunctively  in  the  same  indictment  the 
state  should  ibe  compelled  to  elect. 

Chronister  v.  State   (Ark.),  215  S.  W.  634. 

VII.    Argument  of  Counsel. 

In  a  prosecution  for  selling  intoxicating  liquor,  the  pros- 
ecuting attorney's  opening  statement  that  "prosecuting  wit- 
ness, after  making  inquiries  and  having  information  as  to 
the  defendant's  selling  whisky,"  etc.,  presumably  leading  up 
to  an  outline  of  the  witness'  testimony,  and  not  as  an  at- 
tempt to  introduce  hearsay  evidence,  and  apparently  in  good 
faith,  must  be  held  not  misconduct  of  counsel;  good  faith 
being  the  general  test  in  passing  upon  preliminary  state- 
*  ments  in  criminal  cases  to  the  jury. 

Nelson  v.  State  (Ark.),  212  S.  W.  93. 


TITLE  II— SEC.  32  OF  ACT  289 

Remarks  of  Counsel  in  Argument.— Where  the  pros- 
ecuting witness  on  a  trial  for  selling  liquor  was  accustomed 
to  purchase  whisky  from  persons  illegally  selling  it,  and  he 
drank  to  excess,  the  statement  of  the  solicitor  in  his  clos- 
ing argument  that,  if  a  preacher  was  snake-bitten,  he  could 
not  procure  liquor  from  accused,  made  in  response  to  an 
argument  on  behalf  of  accused  that  the  jury  should  not  be- 
lieve the  prosecuting  witness,  because  he  frequented  blind 
tigers,  was  not  ground  for  reversal. 

Roden  v.  State,  3  Ala.  App.  193,  58  So.  74. 

It  is  improper  for  the  solicitor  in  argument  to  say: 
"Blind  tigers  are  running  *  *  *  and  you  ought  to  strip 
that  kind  of  stuff.  The  good  people  *  *  *  are  all  talking 
about  it,  and  they  are  trying  to  put  down  these  blind  tigers, 
and  I  ask  you  to  help  me  convict  them." 

Kinsman  v.  State,  41  Ga.  App.  481,  81  S.  E.  367. 

In  a  prosecution  for  having  possession  of  intoxicating 
liquor  with  intent  to  sell,  it  was  not  error  to  permit  the  so- 
licitor to  restate  his  contentions  while  the  court  was  re- 
capitulating them  on  both  sides,  and,  if  the  contentions  were 
misstated,  the  court's  attention'  should  have  been  called  to 
it  so  that  the  proper  correction  could  have  been  made. 
State  v.  Baldwin  (N.  C.),  100  S.  E.  345. 

Vin.  Misconduct  of  Court  or  Officers. 

Remarks  of  Judge. — "The  defendant  was  tried  for  a 
violation  of  what  is  known  as  the  'bone  dry'  law,  under  an 
accusation  which  charged  that  he  did  'unlawfully  transport, 
ship  and  carry  and  cause  to  be  transported,  shipped,  and 
carried  from  a  point  without  this  state  to  a  point  within 
this  state,  and  from  place  to  place  in  this  state,  spirituous, 
vinous,  malted,  fermented,  and  intoxicating  liquors;  and 
did  have,  receive,  control,  and  possess,  in  this  state,  spirit- 
uous, vinous,  malted  and  fermented  liquors.'  The  evidence 
shows  that  there  was  found  at  his  store  a  beer  bottle  about 
half  full  of  whisky,  and  at  his  residence  four  full  quarts 
of  whisky,  five  bottles,  and  a  gallon  jug  all  partly  filled  with 
whisky.  He  admitted  having  the  whisky  in  his  possession, 
but  sought  to  excuse  himself  from  criminal  liability  there- 
for by  claiming  that  he  was  ill  and  that  his  physician  had 
—19 


290  TITLE  II— SEC.  32  OF  ACT 

prescribed  the  whisky  for  him.  The  special  ground  of  the 
motion  for  new  trial  is  as  follows :  'The  court  erred  in 
stating  in  the  presence  of  the  jury,  when  defendant  offered 
Dr.  George  H.  Lehman,  a  practicing  physician,  to  prove 
that  as  the  physician  of  the  defendant  he  had  prescribed  a 
certain  amount  of  whisky  for  him,  deeming  it  absolutely 
essential  to  the  preservation  of  his  life,  that  "such  would 
not  be  a  defense  to  the  present  accusation." '  Under  the 
facts  of  this  case,  the  judge  did  not  err  in  making  the  above 
assertion,  which  was  a  correct  statement  of  the  law.  How- 
ever, if  the  defendant  seeks  to  take  advantage  of  such  al- 
leged error  on  the  part  of  the  judge  during  the  progress  of 
the  case,  he  should  do  so  by  a  motion  to  declare  a  mistrial." 

Stapleton  v.  State,  19  Ga.  App.  36,  90  S.  E.  1029,  and 

cases  cited. 

Wilcox  v.  State,  19  Ga.  App.  83,  90  S.  E.  1032. 
Perdue  v.  State,  135  Ga.  277,  69  S.  E.  184. 
Waldemar  v.  State,  21  Ga.  App.  504,  94  S.  E.  624,  625. 

In  Another  Trial. — Where  both  defendant  and  his 
brother  were  separately  convicted  of  having  possession  of 
intoxicating  liquor  for  purpose  of  sale,  the  fact  that  the 
trial  judge,  in  sentencing  defendant's  brother  a  week  pre- 
vious, remarked  that  in  his  opinion  the  two  were  delivering 
liquor  to  people  of  a  particular  town,  is  no  ground  for  re- 
versing judgment  of  conviction  against  defendant  on  the 
theory  that  such  statement  before  bystanders  and  jury  in 
first  case  was  an  expression  of  opinion  as  to  defendant's 
guilt,  for  Revisal  1905,  §  535,  prohibiting  the  judge  from 
expressing  an  opinion  as  to  the  facts,  being  in  derogation 
of  common  law,  should  be  strictly  construed,  and  further- 
more section  1959  required  that  the  panel  for  the  first  week 
in  which  the  remark  was  made  should  be  discharged,  so 
there  was  no  probability  that  any  juror  trying  defendant 
heard  the  remark. 

State  v.  Baldwin  (N.  C.),  100  S.  E.  348. 

Presumption  That  Remarks  of  Judge  in  One  Case 
Were  Disregarded  in  Another  Case. — It  will  be  pre- 
sumed, where  the  judge  in  sentencing  defendant's  brother, 
who  was  also  convicted  of  having  possession  of  intoxicants 


TITLE  II— SEC.  32  OF  ACT  291 

for  purpose  of  sale,  made  a  remark  as  to  their  unlawful 
sales,  that  if  any  one  who  sat  as  a  juror  in  the  prosecution 
against  defendant  heard  the  remark  it  was  disregarded. 

State  v.  Baldwin   (N.  C.),  100  S.  E.  348. 

In  a  prosecution  for  violation  of  the  prohibition  law 
where  the  jury  had  returned  in  the  evening  and  reported  a 
disagreement  at  9:30  the  next  morning,  a  lecture  by  the 
court  urging  the  jury  to  reach  an  agreement  and  remand- 
ing them  to  the  bailiff,  after  which  a  verdict  of  conviction 
was  rendered  at  2:35  the  same  day,  is  not  reversible  error. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

Remarks  of  Bailiff. — In  a  prosecution  for  violating  the 
prohibition  law  by  the  sale  of  Jamaica  ginger,  it  is  improper 
for  the  bailiff  in  charge  of  the  jury  to  remark  in  their  hear- 
ing and  presence  upon  the  intoxicating  properties  of  Ja- 
maica ginger. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

Improper  Influences  on  Jury. — Where,  in  a  prosecu- 
tion for  bringing  intoxicating  liquors  into  the  state,  certain 
women  sat  directly  in  front  of  the  jury  holding  large  posters 
condemning  the  liquor  traffic,  which  the  jury  saw  and  read, 
a  new  trial  should  have  been  granted,  since  their  action  was 
an  attempt  to  impede  justice,  to  deny  the  defendant  a  fair 
and  impartial  trial,  and  to  influence  the  jury  to  arrive  at  a 
verdict  improperly. 

State  v.  Gens,  107  S.  C.  448,  93  S.  E.  139. 

The  exhibition,  during  a  trial  for  introducing  intoxicat- 
ing liqors  into  the  state,  of  a  blackboard  showing  two  other 
similar  indictments  against  defendant,  and  collecting  in  the 
courtroom  large  quantities  of  whisky  involved  in  such  other 
cases  was  improper,  where  the  sole  defense  was  that  ac- 
cused received  the  whisky  inside  the  state. 

Murray  v.  State,  19  Ariz.  49,  165  Pac.  315. 

In  a  prosecution  for  violating  the  prohibition  law,  it  was 
not  prejudicial  error  to  keep  a  row  of  jugs  of  whisky  con- 
tinually in  view  of  the  jury  without  introducing  such  liq- 
uor in  evidence;  it  being  admitted  that  no  prejudice  would 


TITLE  II— SEC.  32  OF  ACT 

have  resulted  if  the  jugs  had  been  properly  identified  and 
offered  in  evidence. 

State  v.  Butler  (la.),  173  N.  W.  239. 

IX.  Jury. 

That  a  juror  was  acquainted  with  the  prosecuting  attor- 
ney and  had  confidence  in  his  ability  and  integrity  and  be- 
lieved in  the  prohibition  law  did  not  disqualify  him. 

State  v.  Sullivan,  97  Wash.  639,  166  Pac.  1123. 

Timely  Objection  to  Question  on  Voir  Dire  Neces- 
sary.— While  the  question  propounded  by  the  solicitor  to 
the  jurors  on  the  voir  dire:  "Are  you  opposed  to  the  en- 
forcement of  the  law  known  as  the  prohibition  law  in 
Georgia?"  was  unauthorized  'by  law  yet  where  no  objection 
was  made  to  the  question  when  propounded,  and  the  ac- 
cused stated  that  he  had  no  objection  to  the  panel  of  jurors 
as  put  upon  him,  either  as  a  whole  or  separately,  he  will  not 
be  heard,  after  the  verdict,  to  object  to  the  question. 

Rothschild  v.  State,  12  Ga.  App.  728,  78  S.  E.  201. 

X.  Instructions. 

Statute  Definition  "Sell"— "Sale."— "The  definition 
given  in  section  3188,  Gen.  St.  1913,  of  the  meaning  of  the 
terms  'sell'  or  'sale'  in  chapter  16,  Gen.  St.  1913  (the  law 
relating  to  intoxicating  liquor),  is  sufficiently  clear  and  com- 
plete, and  may  be  given  to  the  jury  without  further  explana- 
tion." 

State  v.  Meyers,  132  Minn.  4,  155  N.  W.  766. 

"Intoxicating  Liquor." — In  a  prosecution  for  the 
illegal  sale  of  intoxicating  liquors,  where  the  evidence  showed 
a  sale  of  whisky  it  was  proper  for  the  court  to  instruct  the 
jury  that  whisky  is  an  intoxicating  liquor,  and  where  the 
evidence  showed  a  sale  of  whisky,  it  was  unnecessary  for 
the  court  to  define  intoxicating  liquor  further. 

Johnson  v.  State,  81  Tex.  Cr.  App.  71,  193  S.  W.  674. 
In  an  instruction  as  to  keeping  on  hand  liquor,  the  term 


TITLE  II— SEC.  32  OF  ACT  293 

"liquor"  implied  intoxicating  liquor,  and  the  jury  could  not 
have  misunderstood  the  charge. 

Brooks  v.  State,  19  Ga.  App.  3,  90  S.  E.  989. 

See  also,  Mundy  v.  State,  9  Ga.  App.  835,  72  S.  E.  300. 

An  instruction  to  the  jury  "that  in  order  to  make  any 
fluid  or  liquid  an  intoxicating  drink,  it  must  be  capable  of 
producing  intoxication  in  the  usual  sense  and  common  ac- 
ceptation of  the  term  intoxication;  that  is  it  must  have 
in  it  a  sufficient  amount  of  alcohol  to  produce  intoxication 
when  consumed  in  sufficient  quantities,"  properly  propounds 
the  law  in  such  cases,  and  it  was  not  error  to  reject  other 
instructions  propounding  a  different  rule  of  liability. 

State  v.  Henry,  74  W.  Va.  72,  81  S.  E.  569. 

In  a  prosecution  for  violating  the  prohibition  law  by  sell- 
ing Jamaica  ginger,  instructions  to  find  for  defendant  if  the 
compound  sold  be  such  that  its  use  as  a  beverage  is  unde- 
sirable or  practically  impossible  by  reason  of  other  ingred- 
ients and  the  liquor  is  used  merely  as  a  vehicle  for,  or  pres- 
ervation of,  other  ingredients  and  to  hold  them  in  solution, 
although  its  use  may  produce  intoxication,  or  if  it  is  a 
standard  or  medical  preparation  named  in  the  United 
States  dispensatory,  was  properly  refused. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

As  to  Intoxicating  Character  of  Cider.— In  a  prose- 
cution for  violating  the  local  option  law,  where  it  was  a 
serious  issue  whether  the  cider  sold  by  defendant  was  in- 
toxicating, the  court  should  have  charged  the  request  that 
before  the  jury  could  convict  they  must  be  satisfied  that  de- 
fendant sold  one  quart  of  cider  to  the  prosecuting  witness, 
and  that  the  cider  was  intoxicating  i.  e.,  when  taken  into  the 
stomach  of  an  ordinary  man  in  reasonable  quantities  would 
intoxicate  him. 

Salvador  v.  State,  79  Tex.  Cr.  App.  343,  185  S.  \Y.  12. 

As  to  Sale  of  Fermented  Cider. — In  a  prosecution  for 
a  violation  of  the  local  option  law,  an  instruction  that  the 
sale  of  fermented  cider  is  a  violation  of  the  law  was  .not 
erroneous  for  failure  to  state  the  exact  degree  or  scientific 


294  TITLE  II— SEC.  32  OF  ACT 

standard  of  fermentation,  where  it  gave  the  common  mean- 
ing of  the  term  fermented  cider. 

People  v.  Emmons,  178  Mich.  126,  144  N.  W.  479, 
Ann.  Cas.  191 5D,  425. 

Right  to  Instructions  on  Theory  of  Defense. — Where 
an  accusation  names  the  agent  delivering  the  second  ship- 
ment of  liquor,  and  the  accused  defends  upon  the  idea  that 
the  person  named  in  the  accusation  did  not  make  the  sec- 
ond delivery,  but  that  it  was  made  by  another,  and  submits 
proof  to  sustain  this  contention,  it  is  error  for  the  court 
to  ignore  this  theory  of  the  defendant  and  refuse  to  give 
him  the  benefit  thereof  in  the  charge  to  the  jury. 

Southern  Exp.  Co.  v.  State  (Ga.  App.),  97  S.  E.  550. 

In  a  prosecution  for  a  violation  of  the  prohibition  law, 
the  admission  of  evidence  of  the  finding  of  beer  in  a  build- 
ing with  which  defendant  was  not  shown  to  have  had  any 
connection,  and  the  refusal  of  an  instruction  that  if  defend- 
ant had  no  connection  with  the  building,  the  evidence  could 
not  be  considered,  is  improper. 

Grider  v.  State,  10  Ala.  App.  170,  64  So.  756. 

See  also,  Dosset  v.  United  States,  161  C.  C.  A.  20,  248 
Fed.  902. 

Kemp  v.  State,  130  Ark.  175,  196  S.  W.  918. 

A  person  who  is  charged  with  unlawfully  conveying  in- 
toxicating liquor  from  one  place  within  this  state  to  an- 
other place  therein  and  within  the  jurisdiction  of  the  trial 
court,  and  who,  as  his  defense  to  the  charge,  offers  testi- 
mony to  establish  the  fact  that  he  acted  innocently  and  with- 
out knowledge  that  the  packages  conveyed  contained  intox- 
icating liquor,  and  without  sufficient  information  to  put  him 
on  notice  to  this  effect,  is  entitled  to  have  his  defense  sub- 
mitted to  the  jury  by  proper  instructions  of  the  court. 

Golpi  -v.  State,  14  Okla.  Cr.  App.  564,  174  Pac.  288. 

In  a  prosecution  for  violation  of  a  statute  denouncing  the 

shipment,  transportation,  or  delivery  of  intoxicating  liquors 

from   one   state,  territory,   or   foreign   country  to   another 

•person,  firm,  or  corporation  in  Arkansas,  it  was  error  for 


TITLE  II— SEC.  32  OF  ACT  295 

the  court  to  instruct  that  if  defendants  obtained  liquors  in 
another  state,  and  from  that  point  brought  them  into  a 
county  of  Arkansas,  they  were  guilty,  while  refusing  to  in- 
struct that  the  bringing  of  liquor  into  Arkansas  for  the 
personal  use  of  the  individual  who  brings  it  does  not  con- 
stitute an  offense. 

Winfrey  v.  State,  133  Ark.  357,  202  S.  W.  23. 

In  a  prosecution  under  indictment  charging  in  two  counts 
that  defendant  unlawfully  sold  intoxicating  liquors  and  was 
an  accessory  to  such  sale  by  another,  the  trial  court  should 
have  instructed,  on  defendant's  request,  that  one  who  as- 
sists a  purchaser  in  buying  intoxicating  liquors  is  not  guilty 
of  any  offense,  etc.,  which  correctly  stated  the  law,  and  im- 
properly modified  the  instruction  to  limit  its  application  to 
the  first  count,  which  charged  an  illegal  sale  by  defendant. 

Harris  v.  State  (Ark.),  215  S.  W.  620. 

In  a  prosecution  for  violating  the  "blind  tiger"  law,  the 
trial  court  erred  in  refusing  to  instruct  that,  before  the  jury 
could  convict  on  circumstantial  evidence  alone,  the  circum- 
stances must  be  so  convincing  as  to  be  inconsistent  with 
any  reasonable  hypothesis  of  innocence,  while  giving  no 
other  instruction  embodying  such  proposition. 

Robinson  v.  State  (Ind.),  24  N.  E.  489. 

In  trial  for  unlawful  transportation  of  liquor,  an  instruc- 
tion leaving  no  alternative  but  to  convict,  though  defendant 
had  no  knowledge  of,  or  reason  to  know,  contents  of  a 
package  placed  in  his  automobile  by  state's  witness,  which 
question  was  raised  by  defendant's  testimony,  which,  if 
true,  would  have  entitled  him  to  acquittal,  was  erroneous 
as  depriving  defendant  of  benefit  of  his  theory  of  defense. 

Peyton  v.  State  (Okla.  Cr.  App.),  183  Pac.  639. 

In  a  prosecution  for  selling  whisky  contrary  to  law, 
where  the  court  instructed  that  if  defendant  acted  as  an 
intermediary  between  the  buyer  and  seller;  and  thus  as- 
sisted the  seller  in  making  the  sale,  he  was  guilty  as  though 
he  had  sold  whisky  himself,  it  was  error  to  refuse  to  in- 
struct that,  if  defendant  had  no  interest  in  the  sale  and  in 


296  TITLE  II— SEC.  32  OF  ACT 

good  faith  acted  as  the  mere  agent  of  the  purchaser,  he  was 
not  guilty;  that  being  his  theory  of  defense. 

Ellis  v.  State,  133  Ark.  540,  202  S.  W.  702. 

See  also,  Cowley  v.  State,  72  Tex.  Cr.  App.  173,  161  S. 

W.  471. 

Scott  v.  State,  70  Tex.  Cr.  App.  57,  153  S.  W.  871. 
Chance  v.  State  (Tex.  Cr.  App.),  210  S.  W.  208,  209. 

Confined  to  Points  in  Issue. — In  a  prosecution  for  in- 
troducing liquor  into  the  state,  a  charge  that  under  the  law, 
if  the  evidence  warrants  it,  the  jury  may  find  defendant 
guilty,  for  any  person  who  introduces  into  the  state  any 
ardent  spirits,  etc.,  shall  be  guilty  of  a  misdemeanor,  is 
not  objectionable  as  requiring  the  jury  to  convict  even  if 
the  liquor  was  introduced  for  a  lawful  purpose,  where  no 
issue  as  to  the  purpose  of  introducing  the  liquor  was  raised 
at  the  trial. 

Reynolds  v.  State,  18  Ariz.  388,  161  Pac.  885. 

In  prosecution  for  illegal  sale  of  liquor,  charge  that  if 
defendant  knew  or  had  reason  to  know  that  his  employees 
were  selling  liquor  he  is  liable,  is  erroneous,  as  attempting 
to  base  defendant's  liability  upon  the  law  of  negligence,  and 
not  upon  criminal  intent. 

State  v.  Waxman  (N.  J.  Sup.),  107  Atl.  150. 

Where  evidence  in  a  prosecution  for  unlawfully  having, 
controlling,  and  possessing  liquors  showed  finding  of  such 
liquors  in  defendant's  residence,  and  defense  was  that  de- 
fendant was  not  at  his  residency  when  liquors  were  found, 
or  since  they  were  stored,  failure  to  charge  on  defense  of 
alibi  was  not  error. 

Hendrix  v.  State  (Ga.  App.),  100  S.  E.  55. 

Instruction  as  to  Point  on  Which  Evidence  Undis- 
puted.— In  a  prosecution  for  manufacturing  spirituous  or 
fermented  liquors  in  violation  of  statute,  it  was  not  nec- 
essary to  instruct  that  the  liquor  must  have  been  made  after 
January  1,  1916,  when  the  act  took  effect,  where  the  undis- 
puted evidence  showed  that  to  be  the  case. 

Lowery  v.  State,  135  Ark.  159,  203  S.  W.  838. 


TITLE  II— SEC.  32  OF  ACT  297 

Instruction  Going  beyond  Indictment.— In  a  prosecu- 
tion for  illicit  distilling,  the  gravamen  of  the  offense  being 
the  unauthorized  distillation  of  alcoholic  spirits,  an  instruc- 
tion authorizing  conviction  if  accused  distilled  rum,  brandy, 
or  whisky  was  not  erroneous,  though  the  indictment  charged 
only  distillation  of  whisky,  for  the  specification  might  be 
disregarded  as  surplusage. 

Bullard  v.  United  States,  158  C.  C.  A.  177,  245  Fed. 
837. 

A  requested  instruction,  telling  the  jury  that  defendant 
was  not  charged  with  keeping  or  delivering  intoxicating 
liquors  and  should  not  be  convicted  of  such  offense,  was 
properly  refused  where  counts  charging  such  offense  had 
been  voluntarily  dismissed  by  the  state. 

State  v.  Yocum  (Mo.  App.),  205  S.  W.  232. 

In  the  trial  of  an  indictment  charging  solely  the  sale  of 
intoxicating  liquor,  it  was  error  to  charge  the  jury,  in  sub- 
stance, that,  if  they  believed  the  accused  had  intoxicating 
liquor  at  his  place  of  business  or  at  a  public  place,  that  was 
a  circumstance  from  which  the  jury  might  infer  guilt,  un- 
less they  believed  from  the  evidence  that  the  whisky  was 
not  the  property  of  the  accused. 

Holmes  v.  State,  12  Ga.  App.  359,  77  S.  E.  187. 

In  a  prosecution  for  violation  of  the  Bone-Dry  Law  by 
inducing  a  common  carrier  to  transport  liquors  without  re- 
vealing the  nature  and  contents  of  the  package,  the  court  in 
its  charge,  improperly  referred  to  sections  of  the  statute 
other  than  those  on  which  the  prosecution  was  based  and 
told  the  jury  what  acts  on  defendant's  part  would  be  suffi- 
cient to  violate  them. 

Robertson  v.  State,  130  Ark.  158,  197  S.  W.  31. 

Instruction  Giving  Prominence  to  Particular  Evi- 
dence.— In  prosecution  for  misbranding  shipment  of 
whisky  as  for  "medical  purposes,"  the  state  could  not  have 
an  instruction  to  convict  if  the  jury  believed  from  the  evi- 
dence that  the  indorsement  was  false  and  placed  thereon 


298  TITLE  II— SEC.  32  OF  ACT 

without  directions   from  the  purchaser;  it  being  improper 
to  give  special  prominence  to  particular  evidence. 

Commonwealth  v.   Robinson-Pettet  Co.,   181   Ky.   702, 
205  S.  W.  774. 

But  where  state  offered  evidence  of  other  shipments,  in 
the  same  year,  the  court  properly  based  its  instruction  upon 
all  the  evidence. 

Commonwealth  v.   Robinson-Pettet  Co.,   181    Ky.   702, 
205  S.  W.  774. 

In  prosecution  for  possessing  intoxicating  liquor,  where 
testimony  disclosed  it  was  found  in  a  barn,  over  which  two 
had  equal  possession  and  control,  and  nothing  more  was 
shown  than  joint  occupancy  and  control,  and  defendant  was 
away  from  home  at  time  of  seizure,  and  denied  ownership 
or  knowledge  of  its  presence,  a  charge  on  circumstantial 
evidence  and  possession  and  control  over  the  barn,  not  al- 
luding to  joint  occupancy  and  control,  was  error,  as  one 
may  have  control  with  another  and  yet  not  know  of  hidden 
liquors  stored  in  a  house. 

McGee  v.  State  (Ga.  App.),  100  S.  E.  733. 

In  a  prosecution  for  violation  of  local  option  law,  an  in- 
struction necessarily  referring  to  evidence  of  sales  to  em- 
ployees where  the  price  was  deducted  from  their  wages, 
which  made  the  instruction  pertinent,  is  not  objectionable 
as  unduly  directing  attention  to  that  evidence. 

People  v.  Silver,  286  111.  4%,  122  N.  E.  115. 

Must  Not  Be  Argumentative. — In  a  trial  for  violating 
the  prohibitory  law,  an  instruction  that,  in  determining  the 
weight  to  be  given  the  testimony  of  certain  witnesses,  the 
jury  could  consider  that  they  were  deputy  sheriffs,  and  that 
the  sheriff  derives  his  compensation  from  fees,  was  prop- 
erly refused,  as  being  argumentative. 

Sapp  v.  State,  2  Ala.  App.  190,  56  So.  45. 

Verbal  Inaccuracies. — In  prosecution  for  violation  of 
prohibition  laws,  an  instruction  was  not  objectionable  be- 
cause it  contained  the  term  "liquor,"  instead  of  "prohibited 


TITLE  II— SEC.  32  OF  ACT  299 

liquor"    or   "intoxicating   liquor,"   where   the   only   liquors 
referred  to  in  the  evidence  were  of  that  class. 

Stout  v.  State,  15  Ala.  App.  206,  72  So.  762. 

Where  having,  controlling,  and  possessing  liquors  de- 
pended wholly  on  circumstantial  evidence,  failure  to  charge 
precise  language  of  the  statute  was  not  error,  where  court 
stated  to  jury  the  only  possible  hypothesis  from  evidence  or 
defendant's  statement  consistent  with  innocence,  and  said 
that  if  found  true  he  should  be  acquitted. 

Hendrix  v.  State  (Ga.  App.),  100  S.  S.  55. 

Where  the  one  half  pint  of  whisky  found  in  defendant's 
residence  was  put  in  evidence  and  taken  by  jury,  an  inad- 
vertent charge  that  he  had  two  half  pints  in  his  residence, 
which  had  been  put  in  evidence,  did  not  require  a  new  trial, 
as  guilt  did  not  depend  upon  quantity  in  his  possession. 

Barbour  v.  State  (Ga.  App.),  99  S.  E.  782. 

Instructions  to  Be  Construed  as  a  Whole. — "The  in- 
struction to  the  jury  that  they  should  'look  to  the  evidence 
to  see  whether  that  liquor  was  kept  on  hand  by  this  defend- 
ant, kept  there  by  himself  or  through  and  in  connection 
with  other  persons,'  was  not  error  upon  the  ground  that 
the  court  failed  to  instruct  the  jury  that  the  keeping  of  the 
liquor  was  not  a  violation  of  the  law,  unless  it  was  kept  on 
hand  at  the  defendant's  place  of  business.  The  charge  of 
the  court  is  to  be  construed  as  a  whole,  and,  so  construing 
it,  the  jury  must  have  understood  from  it  that,  in  order  to 
convict  the  accused,  the  evidence  must  show  that  the  liquor 
was  kept  on  hand  at  his  place  of  business." 

Brooks  v.  State,  19  Ga.  App.  45,  90  S.  E.  971. 

In  a  prosecution  for  introducing  intoxicating  liquors 
from  without  into  that  part  of  the  state  of  Oklahoma  for- 
merly the  Indian  Territory,  where  defendant,  who,  with 
companions,  mortored  into  the  state,  claimed  that  liquor 
which  he  placed  in  the  car  was  consumed  before  the  state 
line  was  reached,  and  that  the  liquor  found  was  placed  in 
the  machine  by  others,  a  charge  that  only  that  found  in  the 
state  of  Oklahoma  should  be  considered  could  not,  in  view 


300  TITLE  II— SEC.  32  OF  ACT 

of  the  other  charges,  be  deemed  to  have  taken  the  defense 
from  the  jury. 

Dosset  v.  United  States,  161  C.  C.  A.  20,  248  Fed.  902. 

Cumulative  Instructions  Unnecessary. — Where  the 
court  instructed  that,  if  the  defendants  purchased  liquor 
prior  to  November  1,  1916,  and  had  it  for  their  own  use, 
and  not  for  sale,  and  did  not  sell  it,  they  should  be  ac- 
quitted, it  was  not  error  to  refuse  the  requested  instruc- 
tion that,  if  defendants  had  the  liquor  prior  to  such  date, 
their  possession  thereof  created  no  presumption  against 
them. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652. 

The  court  having  charged  the  jury  that  they  must  be 
satisfied  beyond  a  reasonable  doubt  that  the  liquor  found 
in  the  defendant's  place  of  business  was  intoxicating  liq- 
uor, it  was  not  error  to  fail  to  give  in  totidem  verbis  an  in- 
struction to  the  effect  that,  if  the  liquors  found  were  mere 
imitations  of  intoxicating  liquors,  the  defendant  should 
be  acquitted. 

Mundy  v.  State,  9  Ga.  App.  835,  72  S.  E.  300. 

Necessity  for  Request. — In  a  prosecution  for  violat- 
ing the  local  option  law,  where  the  evidence  required  an 
instruction  submitting  the  question  of  the  agency  of  de- 
fendant's son  in  making  sale,  no  request  for  such  instruc- 
tion was  necessary. 

Huddleston  v.  Commonwealth,  171  Ky.  261,  188  S.  W. 
366. 

Necessity  for  Timely  Written  Request. — Where  hav- 
ing, controlling,  and  possessing  liquors  depended  wholly  on 
circumstantial  evidence,  failure  to  charge  precise  statutory 
language  was  not  error,  without  a  timely  written  request. 

Hendrix  v.  State  (Ga.  App.),  100  S.  E.  55. 

And  in  a  prosecution  for  illegal  possession  of  liquor,  the 
court  did  not  err,  in  absence  of  timely  appropriate  written 
request  in  failing  to  instruct  on  the  law  of  alibi. 

Barbour  v.  State  (Ga.  App.),  99  S.  E.  782. 


TITLE  II— SEC.  32  OF  ACT  301 

Opinion  on  Weight  of  the  Evidence.— In  a  prosecu- 
tion for  manufacturing  liquor  in  violation  of  law,  defend- 
ant's plea  of  not  guilty  denying  the  truth  of  all  evidence 
tending  to  show  guilt,  the  court's  charge  that  defendant 
himself  said  he  was  at  the  still  where  he  was  arrested  to 
haul  beer  off  to  assist  somebody  who  had  put  the  beer  there, 
and  that  he  got  into  bad  luck,  was  erroneous  as  an  opinion 
on  the  weight  of  the  evidence,  defendant  not  having  testi- 
fied in  his  own  behalf,  and  the  court  manifestly  referring  to 
what  the  state's  witnesses  had  testified  defendant  told  them 
at  the  time  of  his  arrest,  which  was  a  question  of  fact  for 
the  jury,  depending  on  the  credibility  of  the  state's  wit- 
nesses. 

State  v.  Homer,  174  N.  C.  788,  94  S.  E.  291. 

In  a  prosecution  for  keeping  intoxicating  liquor  for  sale, 
a  charge  that  the  statute  making  the  keeping  of  liquors  in  a 
building  not  used  exclusively  as  a  private  residence  printa 
facie  evidence  that  they  were  kept  for  sale,  means  that,  if 
the  evidence  disclosed  such  fact,  it  is  sufficient  on  its  face 
to  warrant  a  conviction,  is  not  a  charge  on  the  effect  of  evi- 
dence prohibited  by  statute,  since  it  does  not  tell  the  jury 
that  any  fact  has  been  proved  or  that  the  evidence  does  not 
establish  certain  facts  in  dispute. 

Dunn  v.  State,  8  Ala.  App.  410,  62  So.  996. 

"In  a  prosecution  for  violating  the  liquor  law,  where  wit- 
ness testified  that  his  best  recollection  was  that  he  got 
whisky  at  the  place  in  question  and  that  he  had  bought  it 
from  defendant  and  two  others,  there  is  no  merit  in  an  ex- 
ception to  a  charge  as  to  the  weight  to  be  given  to  direct  and 
circumstantial  evidence;  the  jury  being  fully  and  correctly 
instructed  on  reasonable  doubt  and  circumstantial  evi- 
dence." 

Brooks  v.  State,  19  Ga.  App.  3,  90  S.  E.  989. 

Modifying  Erroneous  Instruction. — In  a  prosecution 
for  manufacturing  alcoholic  liquors,  the  court  may  modify 
defendant's  misleading  instruction  as  to  evidence  of  pos- 
session of  malt  grain  or  other  materials  out  of  which  al- 
coholic liquors  could  be  manufactured. 

Patterson  v.  State  (Ark.),  215  S.  W.  629. 


302  TITLE  II— SEC.  32  OF  ACT 

As  to  Weight  of  Detective's  Evidence. — In  a  pros- 
ecution for  the  unlawful  sale  of  intoxicating  liquors,  where 
it  appeared  that  a  police  officer,  learning  that  a  certain  per- 
son had  bought  from  the  defendant,  swore  out  a  warrant, 
and  to  corroborate  such  person  sent  him  with  marked 
money  to  purchase  more  liquor  from  the  defendant,  in  or- 
der to  conclusively  establish  the  offense,  his  credibility  was 
for  the  jury,  and  an  instruction  that  the  evidence  of  a  de- 
tective, or  one  acting  as  such  should  be  considered  with 
more  than  ordinary  caution  was  properly  refused. 

Robinson  v.  Commonwealth,  118  Va.  785,  87  S.  E.  553. 

In  a  prosecution  for  the  illegal  sale  of  intoxicants,  a 
charge  that  if  the  witness  to  the  sale  was  impelled  by  any 
desire  to  catch  accused  in  an  unlawful  act,  his  testimony 
might  be  weighed  in  view  of  that  fact,  sufficiently  covered 
a  requested  charge  that  the  testimony  of  a  detective,  who 
testified  to  the  purchase,  should  be  scrutinized  with  unusual 
caution. 

State  v.  Wainscott,  169  N.  C.  379,  85  S.  E.  380. 

"The  court  rightly  refused  to  single  out  the  testimony  of 
the  detectives  and  instruct  that  the  same  should  be  closely 
scrutinized." 

State  v.  Meyers,  132  Minn.  4,  155  N.  W.  766. 

In  prosecution  for  illegal  sale  of  intoxicating  liquors, 
where  the  only  evidence  of  sale  was  that  of  three  detec- 
tives, instruction  that  the  fact  that  they  were  detectives 
and  bought  liquor  for  the  purpose  of  securing  evidence 
could  be  considered  in  weighing  their  testimony,  was  all 
that  accused  was  entitled  to. 

Baumgartner  v.  State   (Ariz.),  178  Pac.  30. 

As  Expressing  Opinion  on  Facts. — "An  instruction 
that  if,  when  liquor  was  found,  the  business  was  still  car- 
ried on  at  the  place,  though  to  a  more  limited  extent,  or 
more  privately  than  before,  and  liquor  was  kept  there,  it 
would  be  in  his  place  of  business  however  limited,  was  not 
objectionable  as  expressing  an  opinion  in  regard  to  the 
facts." 

Brooks  v.  State,  19  Ga.  App.  3,  90  S.  E.  989. 


TITLE  II— SEC.  32  OF  ACT  303 

"An  instruction  that  for  one  to  keep  liquor  in  his  par- 
ticular place  of  business  in  a  building,  if  he  has  more  than 
one,  would  be  within  the  statute  forbidding  keeping  on  hand 
intoxicating  liquor;  that  it  is  not  necessary  for  the  liquor 
to  be  kept  in  any  particular  room  or  in  the  place  where  the 
main  business  is  carried  on  or  in  a  public  place,  but  it 
might  be  kept  secretly,  or  in  another  room,  or  on  a  differ- 
ent floor,  or  in  a  different  building,  if  kept  convenient  to 
the  place  of  business,  so  as  to  be  available,  is  not  objec- 
tionable as  an  intimation  of  opinion  as  to  the  guilt  of  the 
accused  or  as  assuming  that  he  kept  on  hand  liquor  con- 
trary to  the  statute." 

Brooks  v.  State,  19  Ga.  App.  3,  90  S.  E.  989. 

Where  one  is  charged  with  the  offense  of  making  alco- 
holic liquors  in  violation  of  law,  and  the  evidence  shows 
that  a  substance  commonly  called  "beer,"  made  out  of  corn- 
meal  and  water,  was  found  in  an  outhouse  in  the  posses- 
sion of  defendant  and  on  the  premises  where  he  lived,  it 
is  not  error  for  the  court  to  charge  the  jury  that  they  would 
be  authorized  in  presuming  that  defendant  was  in  posses- 
sion of  the  "beer,"  and  that  he  owned  and  made  it.  This 
charge  instructed  the  jury  that  they  were  only  authorized 
to  conclude  that  the  defendant  made  the  substance  in  ques- 
tion, and  did  not  instruct  the  jury  that  they  were  obliged, 
as  a  matter  of  law,  to  conclude  that  he  made  such  sub- 
stance. This  charge  is  not  subject  to  the  objection  that  it 
contained  an  expression  of  opinion  as  to  what  had  been 
proved  in  the  case. 

Williams  v.  State  (Ga.  App.),  99  S.  E.  711. 

As  Assumption  of  Fact. — "An  instruction  that  by 
'place  of  business'  is  meant  a  public  place  of  business  in  the 
sense  of  a  place  to  which  the  public  is  invited  where  busi- 
ness is  carried  on,  and  it  makes  no  difference  whether  the 
amount  of  business  be  great  or  small,  does  not  assume  that 
whisky  was  sold  at  the  defendant's  place  of  business." 
Brooks  v.  State,  19  Ga.  App.  3,  90  S.  E.  989. 

As  to  Purpose  for  Which  Evidence  Considered.— An 

instruction  in  a  prosecution   for  the  illicit  sale  of  whisky, 
that   evidence   of    defendant's   having  previously   sold   and 


304  TITLE  II— SEC.  32  OF  ACT 

drunk  in  places  managed  by  him,  was  for  the  purpose  of 
corroborating  the  contention  of  the  state  that  he  is  a  liquor 
dealer  and  had  liquor  in  his  possession,  and  is  to  be  con- 
sidered for  that  purpose  only,  but  not  to  prove  that  he  sold 
it  to  the  prosecuting  witness  in  this  case,  is  not  erroneous, 
since  the  effect  allowed  to  such  evidence  was  properly 
stated. 

State  v.  Boynton,  155  N.  C.  456,  71  S.  E.  341. 

As  to  Disregarding  False  Evidence. — Where  there 
was  only  one  witness  for  the  state  in  a  prosecution  for  the 
sale  of  liquor,  a  requested  charge  that  the  jury  might  disre- 
gard his  entire  testimony  if  they  believed  he  knowingly  tes- 
tified falsely,  should  have  been  given. 

Harrison  v.  State,  12  Ala.  App.  284,  68  So.  532. 

Where  the  only  witness  testifying  as  to  an  unlawful  sale 
of  liquor  stated  that  it  was  his  best  judgment  that  the  sale 
was  within  12  months  before  the  finding  of  the  indictment, 
but  made  other  conflicting  statements  in  reference  thereto, 
the  court  should  have  given  an  instruction  that,  if  the  jury 
believe  the  memory  of  the  witness  so  defective  as  to  be  un- 
reliable, they  could  disregard  his  testimony  and  acquit. 
Harrison  v.  State,  12  Ala.  App.  284,  68  So.  532. 

Sufficiency  and  Propriety  of  Particular  Instructions. 
Affirmative  Charge  for  Defendant. — Where,  in  a 
prosecution  for  violating  the  prohibition  law,  there  was  evi- 
dence that  defendant,  at  his  house,  within  12  months  be- 
fore being  indicted,  sold  liquor  to  the  state's  witness  and 
received  pay  therefor,  and  that  he  had  a  store  connected 
with  his  house,  an  affirmative  charge  requested  by  defend- 
ant was  properly  refused. 

Moore  v.  State,  12  Ala.  App.  243,  67  So.  789. 

As  to  Proof  of  Intent. — In  a  prosecution  for  selling 
cider  in  violation  of  the  statute,  the  court's  charge,  after 
having  previously  quoted  the  statute  and  explained  that  the 
selling  of  cider  was  prohibited  only  when  kept  and  deposited 
with  intent  to  sell  for  tippling  purposes  or  as  a  beverage, 
that  he  had  told  the  jury  on  the  last  point — the  intent  of 
the  party — that  they  must  find  under  the  circumstances  that 


TITLE  II— SEC.  32  OF  ACT  305 

the  cider  was  kept  with  the  design  to  be  sold  as  a  beverage, 
was  sufficient  as  to  the  necessity  of  the  government's  prov- 
ing that  defendant  kept  the  cider  with  intent  to  sell  same 
for  tippling  purposes  or  as  a  beverage. 

State  v.  Mathews,  115  Me.  84,  97  Atl.  824. 

As  to  Name  of  Liquor  Being  Immaterial.— "An  in- 
struction that  it  made  no  difference  by  what  name  the  liq- 
uor was  called  so  long  as  it  was  intoxicating,  was  clearly 
proper." 

State  v.  Radke,  139  Minn.  276,  166  N.  W.  346. 

Instruction  as  to  Liability  for  Others'  Acts.— In  a 
prosecution  for  illicit  distilling,  an  instruction  that,  if  de- 
fendant allowed  the  use  of  his  land  for  the  still  under 
agreement  giving  him  control  thereof  or  an  interest  there- 
in, he  was  equally  responsible  with  the  party  in  control  and 
operation,  was  not  open  to  objection,  as  the  charge  war- 
ranted proof  that  defendant  was  engaged  with  others  in 
illicit  distilling. 

Bullard  v.  United  States,  158  C.  C.  A.  177,  245  Fed 
837. 

Where  the  testimony  in  a  prosecution  for  violating  the 
local  option  law,  raised  the  question  of  agency,  and  that 
question  was  not  covered  by  the  charge,  it  was  error  to  re- 
fuse a  requested  instruction  thereon. 

Shepherd  v.  State,  76  Tex.  Cr.  App.  307,  174  S.  W. 
609. 

Ellis  v.  State,  133  Ark.  540,  202  S.  W.  702. 
Chance  v.  State  (Tex.  Cr.  App.),  210  S.  W.  208. 

In  a  prosecution  for  pursuing  the  business  of  selling  in- 
toxicating liquors  in  local  option  territory,  where  there  was 
evidence  that  defendant  was  the  agent  of  a  certain  party, 
one  of  the  alleged  purchasers,  and  that  he  bought  whisky 
for  that  party  from  another  party,  and  did  not  himself  sell 
it  to  such  party,  the  refusal  of  defendant's  requested  in- 
struction that,  if  the  sale  was  not  made  by  himself  to  such 
purchaser,  but  that  he  bought  from  another  party  as  the 
agent  of  such  purchaser,  and  delivered  the  whisky  under 
— >20 


306  TITLE  II— SEC.  32  OF  ACT 

such  circumstances,  it  would  not  be  considered  as  evidence 
of  his  guilt,  was  error. 

Amonett  v.  State  (Tex.  Cr.  App.),  204  S.  W.  438. 

Where  the  evidence  on  the  part  of  the  state  will  support 
either  the  inference  that  the  unlawful  sale  was  entirely  con- 
summated by  the  appellant,  or  by  him  and  another,  it  was 
not  improper  for  the  court  to  instruct  the  jury  as  follows : 
You  are  instructed  that  under  the  laws  of  Oklahoma  any 
person  who  in  any  way  knowingly  takes  part  in  the  sale  of 
intoxicating  liquor  illegally,  whether  the  act  is  completed 
by  himself  alone,  or  in  conjunction  with  another,  is  guilty 
of  violating  the  law  the  same  as  if  he  had  completed  the 
whole  illegal  act  himself. 

Womack  v.  State,   130  Okla.  Cr.  App.  323,  164  Pac. 
477. 

In  a  prosecution  for  selling  intoxicating  liquors  in  pro- 
hibition territory,  a  charge  that  the  ownership  of  the  liq- 
uor was  immaterial,  if  defendant  was  exercising  control, 
etc.,  held  correct,  and  applicable  to  the  case. 

Bird  v.  State  (Tex.  Cr.  App.),  206  S.  W.  844. 

For  Act  of  Carrier. — "The  court  below  did  not  err 
in  instructing  the  jury,  in  substance,  that  if  the  defend- 
ant concealed  the  nature  of  the  contents  of  the  trunk  from 
the  railroad  authorities,  and  they  were  unaware  of  the  na- 
ture of  the  contents  of  the  trunk,  and  under  those  circum- 
stances the  railroad  company  transported  it  for  the  defend- 
ant, their  act  in  thus  transporting  the  trunk  would  be  the 
act  of  the  defendant." 

Hendry  v.  State,  147  Ga.  260,  93  S.  E.  413,  414. 

As  to  Liability  of  Employee  in  Store. — In  prosecu- 
tion for  having  unlawful  possession  of  intoxicating  liquors 
at  a  drug  store,  requested  instruction  that  to  convict,  ac- 
cused must  be  found  to  have  been  in  charge  of  and  not  an 
employee  of  a  store  was  improper;  the  charge  being  pos- 
session of  liquors  and  not  keeping  the  store. 

State  v.  Billingsley,  99  Wash.  445,  169  Pac.  845. 

Under  a  statute  providing  that  an  indictment  is  sufficient 
if  it  charges  that  accused  sold,  offered  for  sale,  kept  for 


TITLE  II— SEC.  32  OF  ACT  307 

sale,  or  otherwise  disposed  of,  liquors  contrary  to  law  and 
that  on  the  trial,  any  act  of  selling  in  violation  of  law  em- 
braced in  the  charge  may  'be  proved  and  a  charge  in  the 
form  specified  shall  be  held  to  include  any  device  or  sub- 
stitute for  any  of  said  liquors,  where  a  sale  was  made  by 
an  employee  of  accused  in  accused's  store,  it  was  not  nec- 
essary to  show  actual  participation  by  accused  in  the  sale; 
and  an  instruction  that  such  participation  was  required  was 
properly  denied. 

Rosenberg  v.  State,  5  Ala.  App.  196,  59  So.  366. 

As  to  Sale  by  Employee— Respondeat  Superior. — In 

a  prosecution  for  illegally  selling  intoxicants,  the  court 
properly  charged  that  defendant  was  guilty,  if  the  sale  was 
actually  made  by  his  employee,  even  if  without  his  consent. 

State  v.  Wilbur  (Ore.),  166  Pac.  51. 

Instruction  as  to  Proof  of  Character  of  Liquor  Sold. 

— An  instruction  "that  it  is  not  necessary  that  any  witness 
testify  positively  as  to  the  particular  name  of  the  liquor. 
It  is  sufficient,  if  you  are  satisfied  from  all  the  facts  and 
circumstances  in  evidence  that  the  liquor  so  sold,  if  any, 
was  intoxicating  liquor  of  the  kind  generally  known  as 
whisky.  The  name  or  lack  of  name  given  to  such  liquor  is 
not  material,  if  the  kind  and  character  of  such  liquor  is 
shown  by  the  evidence  to  be  as  alleged  in  the  information," 
was  correct. 

Nixon  v.  State,  92  Neb.  115,  138  N.  W.  136,  137. 

Where  it  was  insisted  that  the  liquor  was  not  alcoholic 
or  intoxicating,  and  that,  if  it  did  in  fact  at  any  time  become 
alcoholic,  this  chemical  change  resulted  from  an  exposure  of 
the  liquor  to  the  action  of  the  air.  after  it  was  taken  from  his 
possession,  an  instruction  given  by  the  court  took  care  of  this 
question  of  fact  by  charging  the  jury  as  follows:  'The 
court  further  charges  you  that  you  must  find  that  the  liq- 
uor contained  alcohol  at  the  time  it  was  received  from  the 
possession  of  the  defendant.  Unless  you  so  find  'beyond  a 
reasonable  doubt  you  should  return  a  verdict  in  his  favor 
and  acquit." 

Gramlich  v.  State,  135  Ark.  243,  204  S.  W.  848. 


308  TITLE  II— SEC.  32  OF  ACT 

The  following  instruction  was  not  erroneous:  "I  charge 
you  gentlemen  of  the  jury  that  rye  whisky  and  gin  whisky 
is  as  a  matter  of  law  alcoholic  and  intoxicating  liquor." 
Mundy  v.  State,  9  Ga.  App.  835,  72  S.  E.  300. 

As  to  Previous  Conviction. — In  prosecution  for  know- 
ingly, willfully,  and  unlawfully  permitting  intoxicating  liq- 
uors to  be  kept  on  certain  premises  occupied  by  defendant 
court  properly  instructed  jury  to  find  whether  defendant 
had  been  previously  convicted. 

State  v.  Dereiko  (Wash.),  182  Pac.  597. 

As  to  Liability  of  Wife  for  Acts  in  Husband's  Pres- 
ence.— On  the  trial  of  a  husband  and  wife  for  selling  in- 
toxicating liquor,  an  instruction,  that  if  the  wife  made  the 
sale  in  the  presence  of  the  husband  and  under  circum- 
stances that  she  was  acting  under  his  coercion  and  with 
his  consent  and  approval  she  should  be  acquitted,  was  prop- 
erly refused. 

State  v.  Seahorn.  166  N.  C.  373,  81  S.  E.  687. 

On  trial  of  a  husband  and  wife  for  selling  intoxicating 
liquor,  instructions  that  if  the  wife  got  the  liquor  and  de- 
livered it  in  the  hearing  and  with  the  approval  of  the 
husband,  the  jury  could  find  him  guilty,  that  if  she  was 
acting  as  his  agent  or  co-operating  with  him  in  making  a 
sale  he  would  be  just  as  guilty  as  she  was,  that  ordinarily 
what  the  wife  did  in  presence  of  the  husband  was  presumed 
to  be  done  with  his  consent,  but  that  it  must  appear  that  it 
was  with  his  consent,  that  the  court  would  not  charge 
as  requested,  that  if  she  made  sales  under  circumstances 
that  she  was  acting  under  his  coercion  and  with  his  con- 
sent she  should  be  acquitted,  because  she  testified  as  to  the 
circumstances;  that  it  was  for  the  jury  to  pass  upon  her 
guilt  or  innocence,  that  if  they  found  that  she  was  acting 
voluntarily,  assisting  her  husband  willfully,  they  should  find 
her  guilty,  ibut  that  if  she  was  acting  under  the  constraint 
of  her  husband  it  was  not  her  own  voluntary  act,  they 
should  acquit  the  wife,  gave  her  the  benefit  of  the  presump- 
tion that  she  was  acting  under  the  compulsion  of  the  hus- 
band, assuming  that  she  was  entitled  to  such  presump- 
tion. 

State  v.  Seahorn,  166  N.  C.  373,  81   S.  E.  687. 


TITLE  II— SEC.  32  OF  ACT  309 

As  to  Admissibility  of  Evidence  Regardless  of  How 
Acquired. — In  a  prosecution  for  the  unlawful  possession 
of  intoxicating  liquor,  a  charge  that  method  in  which  evi- 
dence was  acquired,  was  not  a  matter  for  the  jury  and  that 
evidence  was  admissible  regardless  of  how  it  was  acquired, 
was  not  erroneous,  particularly  when  court  charged  that 
credibility  of  a  witness  is  exclusively  for  the  jury. 
Barbour  v.  State  (Ga.  App.),  99  S.  E.  782. 

As  to  Admission  of  Evidence  of  Other  Sales. — In  a 
prosecution  for  sale  of  intoxicating  liquors  by  an  employee 
of  the  defendant,  an  instruction  was  requested  that  evi- 
dence had  been  admitted  of  sales  other  than  the  one  charged, 
and  verdict  should  not  be  rendered  against  defendant  or 
either  of  them  by  reason  of  such  other  sales,  and  that  the 
material  sale  is  that  alleged  to  have  been  made  on  a  certain 
date.  The  court  gave  this  instruction,  adding  thereto: 
"Evidence  of  other  sales  was  admitted  for  the  purpose 
merely  of  aiding  in  determining  whether  or  not  there  \vas 
a  sale  on  the  date  alleged."  Held,  that  the  instruction  as 
requested  and  as  modified  was  too  general  as  a  definition 
of  the  purpose  of  admitting  evidence  of  other  sales. 
Elliott  v.  State,  19  Ariz.  1,  164  Pac.  1179. 

Evidence  of  Two  Sales— Instruction  Requiring 
Unanimity  as  to  the  Sale  Proved. — Where,  in  a  prose- 
cution for  violating  the  local  option  law,  the  state  made  out 
prima  facie  two  cases,  one  a  sale  of  liquor  to  C.,  and  the 
other  a  sale  to  R.,  and  the  defendant  made  out  a  case  con- 
tradicting both,  it  was  error  to  instruct  the  jury  to  convict 
defendant  if  they  believed  from  the  evidence  that  he  "sold 
C.  or  R."  intoxicating  liquors,  as  under  it  there  need  be  no 
unanimity  of  the  jury  as  to  which  sale  was  made. 
State  v.  Geist  (Mo.  App.),  195  S.  W.  1050. 

As  to  Participation  or  Interest  in  Sale. — The  re- 
quested instruction,  that  the  jury  must  be  satisfied  that  de- 
fendant sold  the  liquor,  or  was  directly  or  indirectly  inter- 
ested in  the  sale,  was  properly  refused ;  it  being  misleading 
in  that  it  required  the  jury  to  find  that  defendant  had  a 
pecuniary  interest  in  the  sale. 

Condit  v.  State,  130  Ark.  341,  197  S.  W.  579. 


310  TITLE  II— SEC.  32  OF  ACT 

In  a  prosecution  for  violating  the  prohibition  law  by  the 
sale  of  Jamaica  ginger,  it  was  not  error  to  refuse  an  in- 
struction that  the  people  must  prove  beyond  a  reasonable 
doubt  that  a  sale  was  made  of  intoxicating  liquor  either  by 
defendant  personally  or  'by  his  agent  under  his  instructions 
with  his  full  knowledge  and  consent,  in  view  of  Laws  1915, 
p.  285,  §  22,  providing  that  any  person  whose  employee  or 
agent  shall  violate  any  of  the  provisions  of  the  act  shall  be 
deemed  guilty  of  a  misdemeanor;  it  being  conceded  that 
defendant  made  sales  himself  and  authorized  his  clerk  to 
sell  the  liquor. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

In  a  prosecution  for  selling  intoxicating  liquors,  instruc- 
tion that  if  accused  procured  liquor  from  some  one  un- 
known to  the  buyer  he  became  the  seller's  agent  and  was 
guilty,  etc.,  held  proper. 

Wilson  v.  State,  130  Ark.  204,  1%  S.  W.  921. 

In  a  prosecution  for  selling  intoxicating  liquors,  re- 
quested instruction  that  accused  was  not  guilty  if  he  acted 
as  intermediary  between  the  seller  and  buyer  and  had  no 
interest  in  the  sale,  etc.,  held  properly  refused  as  mislead- 
ing and  improper  in  form. 

Wilson  v.  State,  130  Ark.  204,  196  S.  W.  921. 

In  a  prosecution  for  selling  intoxicating  liquor,  refusing 
a  requested  instruction  to  acquit  if  accused  merely  procured 
the  liquor  as  an  accommodation  to  the  buyer  and  had  no 
interest  in  the  sale  or  connection  with  the  seller,  held  re- 
versible error,  where  there  was  evidence  tending  to  estab- 
lish such  facts. 

Kemp  v.  State,  130  Ark.  175,  196  S.  W.  918. 

As  to  Insanity. — Testimony  by  accused  that  he  was 
drunk  and  did  not  know  that  he  made  the  alleged  sale  of 
whisky  is  not  sufficient  to  require  the  giving  of  a  requested 
charge  on  insanity  from  the  recent  use  of  intoxicating  liq- 
uor. 

Johnson  v.  State,  81  Tex.  Cr.  App.  71,  193  S.  W.  674. 

As  to  Intent. — No  error  was  committed  in  refusing  to 
instruct  that  if  the  liquor  was  furnished  in  a  spirit  of  hos- 


TITLE  II— SEC.  32  OF  ACT  311 

pitality,  with  no  intent  to  violate  the  law,  there  was  no  crime, 
for  defendant  denied  that  he  furnished  the  pint  of  beer,  for 
the  illegal  sale  of  which  he  was  tried,  either  in  the  spirit  of 
hospitality  or  for  any  other  purpose. 

State  v.  Meyers,  132  Minn.  4,  155  N.  W.  766. 

As  to  Accomplice  Testimony.— It  was  proper  to  refuse 
to  instruct  on  the  law  of  accomplice  testimony  as  applied 
to  a  witness,  whom  the  evidence  showed  was  unconnected 
with  the  alleged  sale  of  intoxicating  liquors  except  that  he 
was  a  purchaser  of  it. 

Fisher  v.  State,  81  Tex.  Cr.  App.  568,  197  S.  W.  189. 

In  a  prosecution  for  the  illegal  sale  of  intoxicating  liq- 
uors, in  view  of  testimony  of  the  state's  witness  warranting 
finding  that  he  acted  as  agent  for  defendant  in  selling  the 
liquor  he  testified  he  purchased  from  defendant,  the  court 
should  have  given  defendant's  requested  instruction  that  the 
witness  was  an  accomplice. 

Malone  i\  State  (Ark.),  214  S.  W.  36. 

As  to  Presumption  from  Possession. — Where,  in  a 
prosecution  for  violating  the  prohibition  law,  there  was  evi- 
dence that  the  prohibited  liquor  was  kept  in  a  store  or  shop, 
the  court  properly  instructed,  in  accordance  with  a  statute 
that  proof  beyond  a  reasonable  doubt  and  to  a  moral  cer- 
tainty that  defendant  had  the  prohibited  liquor  on  his  prem- 
ises, and  that  such  premises  were  not  used  exclusively  as  a 
dwelling,  would  be  prima  facie  evidence  that  he  kept  the 
liquor  for  sale,  or  with  intent  to  sell  the  same  contrary  to 
law. 

Thomas  v.  State,  12  Ala.  App.  293,  68  So.  549. 

In  a  prosecution  for  violation  of  the  prohibition  law,  an 
instruction  that,  if  the  defendants  had  in  their  possession 
at  any  time  within  the  time  laid  in  the  indictment  certain 
quantities  of  liquor,  this  would  be  prima  facie  evidence  that 
they  had  it  for  sale,  though  acquired  prior  to  November  1, 
1916,  was  free  from  objection. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652,  653. 

Where  the  court  instructed  that,  notwithstanding  posses- 
sion of  more  than  one  gallon  of  liquor  is  prima  facie  evi- 


312  TITLE  II— SEC.  32  OF  ACT 

dence  of  guilt,  if  the  liquor  was  purchased  before  Novem- 
ber 1,  1916,  and  stored  iby  defendants  for  their  own  use, 
they  should  be  acquitted,  it  was  not  error  to  refuse  the  in- 
struction that,  if  the  liquor  was  so  purchased  and  stored, 
the  prima  facie  evidence  of  possession  is  overcome,  and  the 
state  must  prove  by  clear,  distinct,  and  reliable  evidence  the 
illegal  purpose. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652,  654. 

An  instruction  on  prosecution  of  a  druggist  for  maintain- 
ing a  liquor  nuisance,  permitting  the  presumption  that  in- 
toxicating liquor  found  on  the  premises  was  kept  for  illegal 
sale,  to  be  used  as  evidence,  considered  with  all  other  in- 
structions given,  held  not  open  to  complaint. 
State  v.  Snyder  (la.),  171  N.  W.  8. 

As  to  Giving  Away  Liquor. — It  was  proper  to  give  an 
instruction  to  the  jury  concerning  giving  away  intoxicating 
liquor,  as  a  shift  or  device  for  the  purpose  of  evading  the 
provision  of  the  prohibitory  liquor  law.  A  person  can  com- 
mit an  offense  against  that  law  by  shift  or  device,  and  it 
does  not  make  any  difference  whether  it  is  the  first  offense 
or  the  last,  nor  whether  the  offender  has  been  prosecuted  and 
convicted  before  or  not.  He  can  make  a  sale  of  intoxicat- 
ing liquor  through  some  shift  or  device  in  committing  a 
misdemeanor,  or  in  committing  a  felony.  A  felony  does 
not  consist  in  the  manner  in  which  the  offense  is  com- 
mitted, but  in  the  commission  of  the  offense  after  having 
been  convicted. 

State  v.  Compton,  94  Kan.  642,  146  Pac.  1161. 

In  a  prosecution  for  alleged  illegal  sale  of  liquors,  where 
all  the  testimony  concerned  a  sale,  an  instruction  that  the 
defendants  were  guilty  if  they  gave  away  the  liquors, 
though  it  might  have  been  erroneous  had  the  evidence  con- 
cerned a  giving  away,  was  not  misleading. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652,  653. 

As  to  Time  Covered. — Where  a  search  warrant  charged 
the  keeping  of  intoxicating  liquors  for  unlawful  sale  on  a 
certain  date,  an  instruction  authorizing  conviction  if  defend- 
ant had  such  liquor  for  purposes  of  sale  within  12  months 


TITLE  II— SEC.  32  OF  ACT  313 

before  the  warrant  was  issued,  is  not  erroneous,  where,  un- 
der the  statute,  it  is  not  necessary  to  state  the  time  of  the 
commission  of  the  offense  accurately,  unless  time  is  a  ma- 
terial ingredient  of  the  offense. 

Frey  v.  Commonwealth,  169  Ky.  528,  184  S.  W.  896. 

As  to  Number  of  Sales.— In  prosecution  for  pursuing 
business  of  selling  intoxicants  in  local  option  territory,  an 
instruction  that  if  defendant  did  not  engage  in  the  business 
of  selling  as  alleged  in  the  indictment  and  did  not  make  two 
sales  of  intoxicants  within  three  years  next  before  the  date 
mentioned  in  the  indictment,  or  if  from  the  testimony  there 
is  a  reasonable  doubt  that  he  made  two  sales  within  said 
time,  the  finding  should  be  not  guilty,  was  erroneous,  in  that 
it  put  the  burden  of  proof  on  defendant  and  applied  the 
principle  of  reasonable  doubt  only  to  the  issue  of  two  sales 
and  not  to  the  issue  whether  defendant  was  engaged  in  the 
'business  of  selling.  (Per  Gaines  Special  Judge). 

Alexander  v.  State  (Tex.  Cr.  App.),  204  S.  W.  644, 
645. 

The  court's  refusal  to  instruct  that  two  sales  of  intoxi- 
cating liquors  to  the  person  mentioned  in  indictment  for 
pursuing  the  business  of  selling  intoxicating  liquors  must 
be  proved  is  reversible  error,  where  the  indictment  con- 
tained a  general  allegation  of  sales  to  unknown  parties, 
since  the  jury  might  conclude  that,  although  only  sale  to  the 
party  named  was  proved,  a  sale  to  an  unknown  party  would 
justify  conviction. 

Fisher  v.  State,  81  Tex.  Cr.  App.  568,  197  S.  W.  189. 

As  to  Liability  of  Carrier. — As  the  carrier  is  not  lia- 
ble unless  the  statement  that  the  liquor  was  intended  for 
personal  and  family  use  was  false,  the  carrier  cannot  be 
convicted,  though  its  agent  believed  the  statement  was  false, 
and  an  instruction  so  declaring  was  improper;  the  carrier 
being  liable  only  if  the  statement  was  false  and  it  knew  or 
was  charged  with  knowledge  of  facts  which  would  have 
informed  a  reasonably  prudent  person  that  the  statement 
the  liquor  was  intended  for  personal  and  family  use  was 
false. 

Adams  Exp.  Co.  v.  Commonwealth,  174  Ky.  296,  192 
S.  W.  56. 


314  TITLE  II— SEC.  32  OF  ACT 

Instruction  to  Disregard  Count. — Where  indictment 
charged  illegal  sale  of  liquor  in  two  counts,  both  covering 
same  offense  and  only  difference  being  that  one  was  more 
specific  than  other  in  that  it  contained  the  unnecessary  aver- 
ment of  the  name  of  the  person  to  whom  the  liquor  was 
sold,  court's  refusal  to  instruct  jury  not  to  consider  the 
more  general  count  was  not  error. 

Tomlin  v.  Commonwealth  (Va.),  97  S.  E.  305. 

As  to  Reasonable  Doubt. — Where  there  was  evidence 
that  another  who  was  out  of  the  state  and  was  not  indicted 
was  the  party  that  transported  liquor,  and  not  the  accused, 
it  was  error  to  refuse  to  instruct  that,  if  there  was  reason- 
able doubt  as  to  which  committed  the  act,  "neither  could 
be  convicted;"  the  latter  clause  not  rendering  the  instruc- 
tion bad  from  the  fact  that  the  other  was  not  indicted  and 
was  beyond  the  jurisdiction  of  the  court. 

Burton  v.  Commonwealth,  122  Va.  847,  94  S.  E.  923. 

As  to  Possession  of  Liquor  for  Another. — "The 
court  did  not  err  in  instructing  the  jury  that,  if  there  was 
another  person  with  the  defendant,  and  that  such  person 
carried  a  grip  containing  whisky  belonging  to  the  defend- 
ant and  was  carrying  it  for  the  defendant  and  in  his  pres- 
ence, such  possession  would  in  law  be  the  possession  of  the 
defendant,  and  the  jury  would  be  authorized  to  convict." 

Duren  v.  State,  21  Ga.  App.  524,  94  S.  E.  902. 

As  to  Burden  of  Proof. — Accused's  requested  instruc- 
tion that  the  burden  was  on  the  commonwealth  to  prove 
beyond  all  reasonable  doubt  that  distilled  liquor  was  con- 
tained in  the  package  delivered  to  him,  was  properly  re- 
fused ;  the  records  of  the  express  company  and  affidavits  of 
accused,  kept  as  required  by  law,  excluding  every  rational 
hypothesis  of  accused's  innocence. 

Cochran  v.  Commonwealth,  122  Va.  801,  94  S.  E.  329. 

A  charge  that,  where  a  man  is  chargeable  with  the  sale 
of  intoxicating  liquors,  if  the  burden  of  proof  has  been 
sustained  by  the  state  as  later  charged,  he  can  justify  him- 
self only  'by  showing  that  he  made  the  sale  in  the  manner 


TITLE  II— SEC.  32  OF  ACT  315 

authorized  by  law,  is  not  objectionable  as  relieving  the  state 
of  the  burden  of  proving  the  facts  charged. 

State  v.  Hampton,  106  S.  C.  275,  91  S.  E.  314. 

It  was  not  error  to  refuse  special  charge  that  the  state 
must  prove  that  bottles  introduced  in  evidence  and  labeled 
Budweiser  contained  intoxicating  liquor,  where  the  sales 
charged  had  been  fully  proved  toy  other  evidence;  the  bot- 
tles being  introduced  upon  issue  of  character  of  business  in 
which  defendant  was  engaged. 

Head  v.  State  (Tex.  Cr.  App.),  198  S.  W.  581. 

In  a  prosecution  for  maintaining  a  liquor  nuisance,  where 
it  appeared  that  certain  liquor  found  under  a  search  war- 
rant, and  in  view  of  the  statute  under  which  the  finding  of 
such  liquor  raises  a  presumption  that  it  is  kept  for  unlaw- 
ful purposes,  an  instruction  that  the  state  must, prove  de- 
fendant's guilt  beyond  a  reasonable  doubt  before  a  convic- 
tion could  foe  justified,  and  that  the  statutory  presumption 
was  subject  to  rebuttal,  was  as  favorable  as  defendant  was 
entitled  to  ask. 

State  v.  See,  177  la.  316,  158  N.  W.  667. 

Harmless  Error. — Where  one  was  convicted  under  the 
prohibition  law  of  unlawfully  transporting  whisky,  he  was 
not  prejudiced  by  an  improper  instruction  concerning  the 
unlawful  keeping  or  storing  of  whisky. 

Carter  v.  Commonwealth,  123  Va.  810,  96  S.  E.  766. 

Where  the  evidence  showed  only  illicit  distillation  of 
whisky,  an  instruction  authorizing  conviction  on  proof  of 
distillation  of  rum,  brandy,  or  whisky,  was  harmless  though 
the  indictment  specified  only  whisky. 

Bullard  v.  United  States,  158  C.  C.  A.  177,  245  Fed.  837. 

An  instruction  authorizing  the  jury  to  convict  the  defend- 
ant for  the  sale  of  intoxicants  made  at  any  time  within  18 
months  prior  to  the  filing  of  the  information,  when  the  law 
under  which  the  prosecution  was  maintained  had  been  in 
force  only  a  little  more  than  6  months  prior  to  that  time, 
was  improper;  but,  as  the  only  evidence  given  against  the 
defendant  was  of  a  sale  made  a  little  more  than  a  month 


316  TITLE  II— SEC.  32  OF  ACT 

after  the  law  was  in  force,  the  error  was  without  prejudice 
and  immaterial. 

Malick  v.  State  (Neb.),  169  N.  W.  5. 

An  indictment  charging  selling  liquor  in  dry  territory 
to  four  persons  named  can  be  supported  only  by  evidence 
that  the  sale  was  made  to  all  four.  In  a  prosecution  for 
selling  liquor  in  dry  territory,  an  instruction  that  convic- 
tion could  be  had  upon  proving  sale  to  any  one  of  the  four 
named  in  the  indictment  though  error,  was  not  ground  for 
reversal,  where  the  evidence  clearly  proved  sale  to  all  four, 
such  error  being  harmless  under  a  statutory  provision. 

Price  v.  State  (Tex.  Cr.  App.),  202  S.  W.  948. 

In  a  prosecution  for  introducing  liquor  into  the  state,  the 
defendant  could  suffer  no  injury  from  the  failure  to  instruct 
as  to  the  defense  of  lawful  purpose  of  the  introduction, 
when  the  purpose  he  was  shown  to  have  admitted  was  un- 
lawful. 

Reynolds  v.  State,  18  Ariz.  388,  161  Pac.  885. 

A  charge  that  one  convicted  of  the  offense  of  manufac- 
turing liquors  is  punishable  by  imprisonment  in  the  peniten- 
tiary for  a  period  not  less  than  one  nor  longer  than  four 
years  was  inaccurate,  in  that  it  misstated  the  maximum  pen- 
alty, which  is  five  years.  The  jury  could  have  considered 
the  severity  of  the  penalty  prescribed,  in  determining 
whether  or  not  they  should  recommend  that  the  offense  be 
punished  as  for  a  misdemeanor.  But  since  the  judge  could 
have  disregarded  such  recommendation,  and  since  he  sen- 
tenced the  defendant  to  a  term  of  only  two  years  in  the 
penitentiary,  this  misstatement  was  harmless. 

Williams  v.  State  (Ga.  App.),  99  S.  E.  711. 

Where  the  undisputed  evidence  showed  that  accused, 
charged  with  having  intoxicating  liquors  in  his  possession 
for  the  purpose  of  sale,  had  at  one  time  one  gallon  and  three 
pints  of  liquor  at  his  home  and  one  pint  in  his  buggy  while 
on  his  way  to  his  home,  the  error  in  a  charge  that  the  pos- 
session of  one  gallon  was  evidence  that  accused  had  liquor 
for  sale,  though  the  statute  provides  that  the  possession  of 
more  than  one  gallon  of  liquor  at  one  time,  whether  in  one 


TITLE  II— SEC.  32  OF  ACT  317 

or  more  places,  is  prima  facie  evidence  of  guilt,  was  not 
prejudicial  to  accused. 

State  v.  Atwood,  166  N.  C.  438,  81  S.  E.  318. 

v  In  prosecution  for  violation  of  the  "blind  tiger"  law,  re- 
fusal to  defendant  of  an  instruction  that,  before  the  jury 
could  convict  on  circumstantial  evidence  alone,  the  circum- 
stances must  be  so  convincing  as  to  be  inconsistent  with  any 
reasonable  hypothesis  of  innocence,  held  not  harmless  to 
defendant. 

Robinson  v.  State  (Ind.),  124  N.  E.  489. 

In  view  of  fact  that  defendant,  in  trial  for  unlawful  trans- 
portation of  liquors,  had  borne  a  reputation  as  a  law-abiding 
citizen  and  had  held  offices  in  county,  it  could  not  be  as- 
sumed that  refusal  of  an  affirmative  instruction  covering 
the  law  applicable  to  his  testimony,  which,  if  true,  would 
entitle  him  to  an  acquittal,  was  not  prejudicial. 

Peyton  v.  State  (Okla.  Cr.  App.),  183  Pac.  639. 

In  a  prosecution  for  manufacturing  alcoholic  liquors  and 
permitting  distilling  apparatus  to  be  on  defendant's  prem- 
ises, error,  if  any,  in  instructing  that  if  evidence  showed  dis- 
tilling apparatus  to  be  found  on  premises  possessed  and 
controlled  by  defendant  a  prima  facie  case  was  made,  held 
harmless. 

Neal  v.  State  (Ga.  App.),  100  S.  E.  12. 

Where  the  offense  was  committed  on  May  28,  1918,  and 
both  the  state  and  defendant  so  understood  it,  though  the 
evidence  showed  it  was  committed  on  May  28th,  without 
stating  in  what  year,  but  that  there  was  only  one  offense,  a 
charge  that  a  verdict  of  guilty  might  be  returned  under  the 
prohibition  act  of  1917,  if  the  jury  believed  accused  to  be 
guilty  of  the  offense  charged  within  two  years  previous  to 
the  indictment,  was  harmless. 

Plair  v.  State  (Ga.  App.),  99  S.  E.  61. 

XI.  Verdict. 

Responsiveness  of  Verdict  to  Counts. — In  an  intoxi- 
cating liquor  prosecution,  it  is  unnecessary  that  the  verdict 
or  instructions  specifically  indicate  on  which  of  two  counts 


318  TITLE  II— SEC.  32  OF  ACT 

the  defendant  was   convicted,  where  one  count  was  com- 
pletely abandoned  at  the  trial. 

State  v.  Smith  (Mo.  App.),  201  S.  W.  942. 

Verdict  of  Conviction  on  Several  Counts. — Under  an 
indictment  charging  in  one  count  that  accused  sold  spirit- 
uous, vinous  or  malt  liquors  without  a  license,  in  another 
that  he  manufactured,  sold,  offered  for  sale,  kept,  or  had 
in  his  possession  for  sale,  etc.,  such  liquors  without  license, 
and  in  three  other  separate  counts  that  he  sold,  offered  for 
sale,  or  otherwise  disposed  of  such  liquors,  accused  could 
be  convicted  under  more  than  one  count  if  the  evidence 
justified  it. 

Loudermilk  v.  State,  4  Ala.  App.  167,  58  So.  180. 

A  general  verdict  of  guilty  on  an  accusation  containing 
two  counts,  one  charging  accused  with  keeping,  the  other 
with  selling,  intoxicating  liquors,  cannot  be  sustained,  where 
there  is  no  evidence  of  guilt  as  to  the  charge  contained  in 
the  second  count. 

Dozier  v.  State,  14  Ga.  App.  473,  81  S.  E.  368. 

Verdict  of  Conviction  of  Separate  Sales. — Where 
violations  of  law  are  not  continuous  in  their  nature  separate 
indictments  may  be  maintained  for  each  one;  consequently 
under  indictments  for  selling  intoxicating  liquors  one  may 
be  convicted  for.  each  separate  sale. 

State  v.  Freeman,  162  N.  C.  594,  77  S.  E.  780,  45  L. 
R.  A.,  N.  S.,  977n. 

Verdict  Varying  from  Charge  against  Accused.— 
Where  the  affidavit  or  warrant  for  a  violation  of  the  pro- 
hibition laws  charged  a  different  offense  and  embraced  an 
entirely  different  transaction  from  that  of  which  defendant 
was  convicted,  her  conviction  of  an  offense  not  charged  or 
included  in  the  indictment,  information  or  affidavit  must  be 
set  aside. 

Doublin  v.  State,  15  Ala.  App.  527,  74  So.  86. 

On  Uncertain  Plea  of  Guilty. — Where  one  was  brought 
before  a  justice  upon  a  warrant  charging  him  with  selling, 
giving  away,  offering,  exposing  for  sale,  transporting,  and 


TITLE  II— SEC.  32  OF  ACT  319 

aiding  in  procuring  ardent  spirits  contrary  to  law,  a  state- 
ment by  him  that  he  wanted  to  plead  guilty  to  "the  charge" 
was  too  uncertain  to  alone  support  a  conviction  for  trans- 
porting liquor. 

Collins  v.  Commonwealth,  123  Va.  815,  96  S.  E.  826. 

Verdict  Construed  as  Not  a  Special  Verdict. — \Yhen 
on  an  accusation  charging  the  defendant  with  a  violation 
of  the  law  in  several  different  ways,  the  verdict  finds  him 
''guilty  of  transporting  whisky,"  it  is  not  a  special  verdict 
stopping  short  of  the  facts  requisite  to  a  conviction,  but  is 
a  finding  that  the  defendant  violated  the  prohibition  law 
by  transporting  whisky. 

Dunbar  v.  State,  21  Ga.  App.  502,  94  S.  E.  587. 

Direction  of  Verdict. — Where  the  res  gesta  of  the  oc- 
currence showed  clearly  that  defendant  had  no  knowledge 
that  intoxicating  liquor  was  on  his  premises,  and  that  he 
had  no  control  over  it  or  title  or  interest  in  it,  but  that  an- 
other person  had  hidden  the  liquor  on  his  premises,  where 
it  was  found  by  the  officers,  a  verdict  for  defendant  should 
have  been  directed,  although  if  the  facts  had  not  been  fully 
explained  or  the  explanation  had  come  after  time  for  med- 
itation and  the  concoction  of  an  excuse,  the  case  might  have 
been  for  the  jury. 

Oldacre  v.  State  (Ala.  App.),  75  So.  827. 

Submission  of  Form  of  Verdict.— In  a  prosecution 
against  two  defendants  for  illegally  carrying  around  on  their 
persons  and  in  a  vehicle  intoxicating  liquors  with  intent  to 
sell  and  dispose  of  the  same  by  gift  or  otherwise,  it  was  not 
error  to  submit  four  forms  of  verdict,  one  for  conviction 
and  one  for  acquittal  for  each  of  the  two  defendants. 

State  v.  Butler  (la.),  173  N.  W.  239. 

XII.  Arrest  of  Judgment. 

For  Failure  to  Show  Offense  within  Statutory  Pe- 
riod.— The  failure  of  the  state  to  show  that  the  offense  of 
unlawfully  manufacturing  spirituous  liquors  was  com- 
mitted within  two  years  should  be  taken  advantage  of  by 


320  TITLE  II— SEC.  32  OF  ACT 

accused  by  a  requested  instruction,  and  is  not  available  in 
arrest  of  judgment. 

State  v.  Francis,  157  N.  C.  612,  72  S.  E.  1041. 

For  Failure  to  State  Time  of  Commission  of  Offense 
in  Indictment. — Time  is  not  of  the  essence  of  the  offense 
of  unlawfully  manufacturing  spirituous  liquor,  and,  under 
a  statute  providing  that  no  judgment  shall  be  stayed  for  the 
failure  of  the  indictment  to  state  the  time  of  the  commis- 
sion of  the  offense  an  indictment  need  not  state  the  time  of 
the  commission  of  the  offense  to  support  it  against  a  mo- 
tion in  arrest. 

State  v.  Francis,  157  N.  C.  612,  72  S.  E.  1041. 

Special  Verdict  Equivalent  to  General  One  No 
Ground. — "The  fact  that  upon  a  trial  for  the  sale  of  in- 
toxicating liquor  the  jury  returned  a  verdict  finding  'the  de- 
fendant, Paul  Littlefield,  guilty  of  aiding  and  assisting  in 
the  sale  of  intoxicating  liquor'  did  not  render  the  conviction 
illegal,  and  afforded  no  ground  for  arresting  the  judgment. 
A  general  verdict  of  'guilty'  would  have  been  the  technically 
correct  form.  Since,  however,  one  who  aids  and  assists  in 
selling  intoxicating  liquor  may  be  found  guilty  as  the  prin- 
cipal offender  under  an  indictment  or  accusation  charging 
him  with  the  sale,  the  verdict  in  the  instant  case  is  simply  a 
special  verdict,  equivalent  to  a  general  verdict  of  guilty,  and 
is  valid,  and  the  court  did  not  err  in  overruling  the  motion 
in  arrest  of  judgment.  See  Duntoar  v.  State,  21  Ga.  App. 
502,  94  S.  E.  587." 

Littlefield  v.  State,  22  Ga.  App.  783,  97  S.  E.  259. 

Duplicity    in  Information  No  Ground. — A    judgment 
after  verdict  for  selling  intoxicating  liquors  will  not  be  ar- 
rested because  of  duplicity  in  the  information. 
Ray  v.  State  (Del.),  100  Atl.  472. 

Defect  in  Original  Search  Warrant  No  Ground.— 
The  absence  of  initial  jurisdiction  by  reason  of  the  failure 
of  a  search  warrant  to  designate  for  search  the  premises 
on  which  contraband  and  outlawed  liquors  were  found  and 
seized,  was  cured  by  the  actual  seizure  and  presence  of  the 
liquors  before  the  court,  and  it  was  proper  for  the  trial 


TITLE  II— SEC.  32  OF  ACT  321 

court  to  execute  the  sentence  of  the  statute  without  regard 
to  the  defect   mentioned,   although   such   defect   would  be 
fatal  to  a  proceeding  against  lawful  property. 
Hemmelweit  v.  State  (Ala.),  75  So.  961. 

Defective  Indictment. — A  conviction  cannot  be  sus- 
tained on  an  information  which  attempts  to  charge  a  viola- 
tion of  the  prohibitory  law  by  simply  alleging  that  the  ac- 
cused did  give  away  whisky  in  violation  of  law. 

Findley  v.  State,  11  Okla.  Cr.  App.  275,  145  Pac.  1107. 

Where  Philip  Goldberg  was  indicted  under  several  counts 
for  unlawfully  selling  intoxicating  liquors,  the  objection  that 
one  count  was  against  Philip  Holdberg  was  properly  raised 
by  motion  in  arrest  of  judgment. 

People  v.  Goldberg,  287  111.  238,  122  N.  E.  530. 

"Where  defendant  in  a  prosecution  for  unlawfully  selling 
intoxicating  liquors  was  found  guilty  under  the  name  of 
Philip  Goldberg  in  49  counts  and  also  as  Philip  Holdberg 
in  1  count,  the  entire  judgment  is  erroneous  and  will  be  re- 
versed. 

People  v.  Goldberg,  287  111.  238,  122  N.  E.  530. 

XIII.  New  Trial. 

A  defendant,  convicted  of  violating  the  Indiana  "Blind 
Tiger  Law"  and  sentenced  to  a  fine  and  imprisonment  in 
the  county  jail,  should  present  the  question  as  to  the  place 
of  imprisonment  by  a  motion  to  modify  the  judgment,  and 
not  by  a  motion  for  new  trial. 

Heier  v.  State  (Ind.),  122  N.  E.  578. 

Sufficiency  of  Evidence. — "The  defendant  was  con- 
victed upon  circumstantial  evidence  of  the  sale  of  intoxi- 
cating liquors.  No  error  of  law  is  complained  of,  the  evi- 
dence excluded  every  reasonable  hypothesis  other  than  that 
of  the  guilt  of  the  accused,  and  the  court  did  not  err  in 
overruling  the  motion  for  a  new  trial." 

Sangfield  v.  State,  18  Ga.  App.  680,  90  S.  E.  352. 

Where  one  charged  with  the  offense  of  selling  intoxicat- 
ing liquor  makes  the  defense  that  he  was  acting  merely  as 

—21 


322  TITLE  II— SEC.  32  OF  ACT 

agent  for  the  purchaser,  it  devolves  upon  the  jury  trying 
the  case  to  determine  his  actual  relation  to  the  act  charged; 
and  where  the  evidence  is  sufficient  to  sustain  the  verdict 
rendered,  the  discretion  of  the  trial  judge  in  denying  a  mo- 
tion for  new  trial,  based  entirely  on  the  weakness  of  the 
proof  offered  in  behalf  of  the  state,  will  not  be  interfered 
with. 

Smith  v.  State,  14  Ga.  App.  577,  81  S.  E.  801. 

In  a  prosecution  for  the  illicit  manufacture  of  intoxicat- 
ing liquors,  a  motion  to  dismiss  as  of  nonsuit  was  properly 
overruled;  there  being  some  evidence  that  defendant  knew 
of  existence  of  the  still  and  fired  a  gun  in  the  air  when  he 
saw  an  officer  approaching  the  blockade  distillery  to  give 
warning  to  the  distillers. 

State  v.  Killian  (N.  C.),  101  S.  E.  109. 

Admission  of  Evidence. — In  a  prosecution  for  illegally 
storing  intoxicating  liquor,  where  evidence  had  been  given 
that  certain  persons  had  been  seen  drinking  beer  on  the 
premises,  a  motion  for  a  new  trial  was  properly  denied, 
where  it  was  not  claimed  that  the  persons  so  seen  on  the 
premises  were  not  in  the  county  or  within  reach  at  the  time 
of  the  trial,  nor  that  they  would  have  denied  the  testimony 
introduced. 

People  v.  Calliari,  1%  Mich.  475,  163  N.  W.  154,  155. 

Where  evidence,  in  prosecution  for  the  possession  of  in- 
toxicating liquor,  demanded  a  verdict  of  guilty,  even  if  evi- 
dence referred  to  in  special  ground  of  motion  for  new  trial 
was  improperly  admitted,  its  admission  would  not  warrant 
a  new  trial. 

Autrey  v.  State  (Ga.  App.),  99  S.  E.  389. 

Affidavit  for  as  Hearsay. — An  affidavit  on  a  motion  for 
new  trial  in  a  prosecution  for  violating  the  prohibition  law, 
made  by  defendant's  attorney,  that  a  juror  was  "heard  to 
say"  that  the  bailiff  seemed  to  know  all  about  the  intoxicat- 
ing properties  of  Jamaica  ginger  after  listening  to  his  con- 
versation on  that  subject,  was  inadmissible  as  hearsay. 

McLean  v.  People  (Colo.),  180  Pac.  676. 


TITLE  II— SEC.  32  OF  ACT  323 

Discharge  of  Accused. — When  a  judgment  is  reversed 
and  case  remanded  for  new  trial,  the  defendant  is  not  en- 
titled to  be  discharged. 

State  v.  Smith,  89  N.  J.  L.  52,  97  Atl.  780. 

XIV.  Sentence  and  Punishment. 

Double  Punishment. — Where  defendant  was  convicted 
and  sentenced  to  imprisonment  in  the  county  jail,  he  cannot 
thereafter  be  sentenced  on  the  same  conviction  to  another 
and  different  punishment,  which  would  in  effect  be  punish- 
ing him  twice  for  the  same  offense. 

Blackman  v.  United  States,  162  C.  C.  A.  519,  250  Fed. 
449. 

Excessive  Punishment. — In  a  prosecution  for  unlaw- 
fully keeping  intoxicating  liquors  with  intent  to  sell  or  give 
away,  a  sentence  of  imprisonment  in  the  county  jail  for  9 
months  and  in  addition  to  pay  a  fine  of  $200  and  costs,  in 
default  of  payment  of  which  in  addition  to  such  imprison- 
ment defendant  was  to  be  imprisoned  for  a  period  not  ex- 
ceeding 60  days,  to  commence  on  the  expiration  of  the  9 
months'  term,  is  excessive,  and  would  be  reduced  to  a  fine 
of  $300  or  90  days,  and  the  payment  of  costs. 

State  v.  Butler  (la.),  173  N.  W.  239. 

Law  Applicable. — One  violating  the  Zone  Liquor  Law 
is  not  entitled  to  be  punished  under  the  later-passed  State- 
Wide  Act,  fixing  a  lighter  punishment. 

Ex  parte  Roya  (Tex.  Cr.  App.),  215  S.  W.  322. 

Sentence. — \Vhere  one  verdict  assessed  a  fine  of  $50 
and  30  days'  imprisonment,  and  another  a  fine  of  $500  and 
6  months'  imprisonment,  without  designating  in  either  ver- 
dict the  name  of  either  of  two  defendants  jointly  tried  for 
possession  of  intoxicating  liquor,  the  court's  maximum 
sentence  against  either  would  be  a  fine  of  $50  and  an  im- 
prisonment of  30  days. 

Harris  v.  State  (Okla.  Cr.  App.),  181  Pac.  944. 


324  TITLE  II— SEC.  32  OF  ACT 

XV.  Appeal  and  Error. 

Law  Authorizing  Appeal  as  Ex  Post  Facto  Law.— 

That  an  act  authorizing  an  appeal  by  the  state  in  proceed- 
ings for  condemnation  of  intoxicating  liquors,  became  ef- 
fective after  the  owner  began  keeping  the  liquors  seized 
in  such  a  proceeding,  does  not  make  it  ex  post  facto  as  to 
such  a  proceeding;  the  statute  relating  only  to  procedure. 
State  v.  Tygart  (la.),  172  N.  W.  299. 

Exceptions  and  Objections. — Where  it  is  sought  to 
differentiate  the  case  of  an  employee  from  that  of  his  em- 
ployer, charged  together,  the  points  relied  on  must  be 
brought  to  the  attention  of  the  trial  court,  and  exceptions 
saved  to  its  rulings,  to  insure  review  by  the  appellate  court. 
Turner  v.  United  States  (C.  C.  A.),  259  Fed.  103. 

Assignments  of  Error. — An  assignment  of  error  in 
overruling  a  defendant's  objection  to  the  question  set  out  on 
page  10  of  the  record  there  being  on  that  page  six  ques- 
tions, thereof  which  were  objected  to,  all  relating  to  the 
shipment  of  whisky,  its  receipt  and  whether  or  not  it  was 
delivered,  is  too  general  to  warrant  consideration. 
Flowers  v.  Birmingham  (Ala.  App.),  83  So.  36. 

Perfection  of  Appeal. — An  appeal  was  sufficiently  per- 
fected, though  a  written  notice  of  appeal  was  stamped  as 
filed  by  the  justice  on  the  same  day,  but  before  entry  of 
judgment  upon  the  docket  where  the  statute  only  requires 
an  oral  notice  of  appeal,  which  fact  must  ibe  entered  by 
the  justice  on  his  docket. 

State  v.  Taggart  (la.),  172  N.  W.  299. 

Question  Not  Raised  Below. — Where  a  jury  found 
that  cider  sold  by  defendant  was  intoxicating,  upon  evi- 
dence justifying  such  an  inference,  and  the  defendant  did 
not  raise  the  question  whether  such  a  sale  came  within  the 
language  of  the  statute  the  conviction  must  be  affirmed. 
State  v.  Clifford,  88  N.  J.  L.  458,  97  Atl.  57. 

Variance  in  Charge  of  Offense. — Where  prosecution 
was  begun  by  affidavit  in  county  court,  charging  defendant 


TITLE  II— SEC.  32  of  ACT  325 

with  manufacturing  and  defendant  was  convicted  and  ap- 
pealed to  the  circuit  court,  in  which  court  the  solicitor  filed 
a  complaint  charging  the  same  offense,  defendant  cannot 
complain  that  the  charge  in  the  circuit  court  was  a  different 
charge  from  the  one  in  the  county  court. 

Norred  v.  State  (Ala.  App.),  82  So.  559. 

Verdict  on  Conflicting  Evidence. — An  appellate  court 
will  not  on  review  of  a  judgment  of  conviction,  disturb  a 
verdict  found  by  the  jury  on  conflicting  evidence  as  to 
whether  "Bevo"  or  "Temperance  Malt"  is  capable  of  pro- 
ducing intoxication  as  defined  in  said  instruction. 

State  v.  Henry,  74  W.  Va.  72,  81  S.  E.  569. 

Where  a  defendant  was  convicted  of  possessing  intox- 
icating liquors  in  violation  of  law,  and  the  evidence  author- 
ized conviction,  no  error  of  law  ibeing  complained  of,  the 
Appellate  Court  is  powerless  to  set  the  conviction  aside. 

Dalton  v.  State  (Ga.  App.),  100  S.  E.  781. 

Where  evidence  was  sufficient  to  justify  jury's  finding 
that  defendant  was  in  possession  of  whisky,  and  material 
and  equipment  for  making  more,  and  trial  court  approved 
verdict,  conviction  will  be  affirmed ;  no  error  being  shown. 

Barksdale  v.  State  (Ga.  App.),  100  S.  E.  771. 

Where  there  was  evidence,  in  a  prosecution  for  posses- 
sion of  intoxicating  liquors,  sufficient  to  authorize  the  ver- 
dict, and  motion  for  a  new  trial  on  ground  that  verdict  was 
without  evidence  to  support  it  was  denied,  the  verdict  must 
stand. 

Autrey  v.  State   (Ga.  App.),  99  S.  E.  389. 

Where  evidence  in  prosecution  for  selling  intoxicating 
liquor  presented  a  plain  conflict,  and  testimony  of  state's 
witnesses  clearly  supported  conviction,  and  no  brief  was 
filed  by  defendant  appellant,  and  no  appearance  was  made 
to  orally  argue  cause  at  submission,  and  an  examination  of 
record  discloses  no  error  prejudicial  to  his  substantial 
rights,  the  conviction  will  be  affirmed. 

Braden  v.  State  (Okla.  Cr.  App.),  181  Pac.  736. 


326  TITLE  II— SEC.  32  OF  ACT 

Sufficiency  of  Evidence  to  Support  Verdict. — "When 
the  jury  have  solved  the  issues  presented  in  the  testimony 
under  a  fair  and  proper  charge  of  the  court,  and  have  found 
that  defendant  is  guilty  of  unlawfully  making  the  sale  al- 
leged, and  the  verdict  has  been  approved  by  the  trial  judge, 
whose  duty  it  is  to  set  it  aside  if  not  satisfied  that  defend- 
ant has  been  proven  guilty  as  charged,  and  there  is  suffi- 
cient evidence  in  the  record,  if  believed,  to  sustain  the  ver- 
dict, it  will  not  be  disturbed  on  the  facts  on  appeal  unless 
clearly  wrong." 

Lee  v.  State  (Tex.  Cr.  App.),  204  S.  W.  110,  112. 

In  a  prosecution  for  violation  of  the  bootlegging  statute, 
the  credibility  of  a  witness  against  defendant  and  if  his  tes- 
timony was  for  the  jury;  and,  the  finding  having  been 
against  defendant,  the  Supreme  Court  should  not  interfere, 
even  though  sitting  as  a  jury  they  might  not  have  convicted. 
State  v.  Alderman  (la.),  174  N.  W.  30. 

Admission    of    Irrelevant    Evidence — Discharge. — 

Where  an  indictment  charges  illegal  sale  of  liquors  to  a 
person  named  and  to  others  not  named,  and  evidence  as  to 
sales  to  the  latter  is  improperly  admitted,  the  judgment 
must  ibe  reversed,  and  the  record  remitted  for  a  new  trial. 
The  defendant  is  not  entitled  to  be  discharged. 

State  v.  Smith,  89  N.  J.  L.  52,  97  Atl.  780. 

Where  facts  were  proven  establishing  the  legal  presump- 
tion of  guilt  arising  from  the  keeping  of  liquors  in  a  build- 
ing not  used  exclusively  for  a  dwelling,  a  conviction  will 
not  be  reversed,  although  a  third  person  testified  that  the 
liquor  was  his,  and  not  the  defendant's,  and  that  he  had 
pleaded  guilty  and  had  paid  a  fine. 

Maisel  v.  State  (Ala.  App.),  81  So.  348. 

Harmless  Error. 

Refusal  of  Continuance. — In  prosecution  for  selling 
intoxicating  liquor  in  dry  territory,  court's  refusal  to  con- 
tinue trial  because  of  absence  of  witness  was  not  reversible 
error,  where  expected  evidence  all  bearing  on  question  of 
the  intent  of  accused  would  have  been  immaterial ;  the  un- 


TITLE  II— SEC.  32  OF  ACT  327 

disputed  evidence  being  that  the  bottle  accused  sold  con- 
tained whisky. 

People  v.  Allen  (Cal.  App.),  174  Pac.  374. 

In  Admission  of  Evidence. — While  evidence  of  sales 
of  intoxicants  subsequent  to  date  alleged  in  indictment  was 
inadmissible,  where  the  same  witnesses  testified  to  numer- 
ous sales  prior  to  such  date,  the  evidence  was  not  material 
to  the  state,  and  its  admission  was  without  prejudice  to  de- 
fendant. (Per  Gaines  Special  Judge.) 

Alexander  v.  State   (Tex.  Cr.  App.),  204  S.  W.  644, 
645. 

In  prosecution  for  soliciting  or  receiving  orders  for  liq- 
uors, the  sale  of  which  was  prohibited  in  the  state,  any  er- 
ror in  overruling  defendant's  objection  and  motion  to  ex- 
clude a  witness'  answer  that  "he  told  me  he  was,"  was  with- 
out injury,  where  question  related  to  consignor's  status  at 
time  of  trial,  and  not  at  time  defendant's  order  for  liquors 
was  made  out  to  him. 

Flowers  v.  Birmingham  (Ala.  App.),  83  So.  36. 

A  conviction  for  introducing  intoxicating  liquors  into  the 
state  ibased  upon  the  admissions  of  accused  and  attendant 
circumstances,  the  sole  defense  being  that  the  liquor  was 
received  inside  the  state,  will  not  be  reversed  because  the 
jury  was  erroneously  informed  that  other  similar  charges 
were  pending  against  accused  and  the  liquor  involved  in 
such  cases  was  shown  them. 

Murray  v.  State,  19  Ariz.  49,  165  Pac.  315. 

In  Excluding  Testimony. — In  prosecution  for  second 
violation  of  prohibitory  liquor  law,  error  in  excluding  de- 
fendant's question  to  prosecuting  witness,  on  cross-exami- 
nation, as  to  whether  he  was  not  paid  to  secure  evidence, 
was  harmless,  where  defendant's  testimony  so  corroborated 
that  of  witness  as  to  make  his  interest  immaterial. 

Files  v.  State  (Okla.  Cr.  App.),  182  Pac.  911. 

In  a  prosecution  for  a  second  violation  of  the  prohibitory 
liquor  laws,  the  refusal  to  permit  defendant,  on  cross-ex- 
amination of  prosecuting  witness,  to  ask  if  he  was  not  paid 


328  TITLE  II— SEC.  32  OF  ACT 

to  secure  evidence  in  the  case,  intended  to  show  witnesses' 
interest,  was  error. 

Files  v.  State  (Okla.  Cr.  App.),  182  Pac.  911. 

Error  in  Verdict  as  Harmless. — Where  one  was  con- 
victed of  unlawful  transportation  and  also  sale  of  ardent 
spirits,  error  of  court  in  declining  to  set  aside  verdict  as 
to  ''selling"  ardent  spirits  because  unsupported  (by  evidence 
was  harmless,  where  penalty  imposed  was  the  minimum 
penalty  for  transporting  spirits. 

Collins  v.  Commonwealth,  123  Va.  815,  96  S.  E.  826, 
827. 

Error  Cured  by  Withdrawal  from  Jury. — "Even  if 
the  testimony  of  the  deputy  sheriff  touching  the  arrest  of 
the  accused  and  the  seizure  of  certain  whisky,  which  the 
witness  understood  was  to  be  used  in  connection  with  an- 
other case  (not  then  on  trial),  was  irrelevant,  notwith- 
standing it  might  tend  to  corroborate  the  testimony  as  to 
the  alleged  sale  under  investigation,  because  the  time  when 
the  whisky  was  found  in  the  defendant's  possession  was 
not  definitely  shown,  the  error,  if  any,  in  admitting  this 
testimony,  was  sufficiently  cured  by  its  withdrawal  by  the 
court  from  the  jury." 

Bishop  v.  State,  18  Ga.  App.  714,  90  S.  E.  369. 

Wlhiere  Fair  Trial  Not  Had. — Where  there  is  no  doubt 
that  the  conduct  of  the  audience  in  the  courtroom  during 
a  prosecution  for  illegal  transportation  of  liquor  was  so 
irregular  that  the  defendant  did  not  obtain  a  fair  and  im- 
partial trial,  the  appellate  court  will  grant  a  new  trial. 

State  v.  Gens,  107  S.  C.  448,  83  S.  E.  139. 

Refusal  of  Court  to  Comply  with  Request  of  Jury 
to  Have  Certain  Evidence  Re-Read  to  Jury. — Defend- 
ant accused  of  selling  intoxicating  liquor  is  not  prejudiced 
by  the  refusal  of  the  court  to  re-read  to  the  jury  on  their 
request  the  testimony  of  a  witness  as  to  sales  made  by  ac- 
cused and  for  which  he  had  been  convicted. 

State  v.  Hampton,  106  S.  C.  275,  91  S.  E.  314. 
In  instructions,  see  ante,  this  section. 


TITLE  II— SEC.  32  OF  ACT  329 

Correction  of  Error  by  Lower  Court.— In  a  prosecu- 
tion for  having  possession  of  intoxicating  liquor  with  in- 
tent to  sell,  where  the  trial  court  promptly  corrected  his 
erroneous  statement  that  the  law  presumed  an  intent  or 
purpose  to  sell  from  the  bare  fact  of  possession  of  more 
than  a  quart  and  stated  the  correct  rule,  the  error  was  suf- 
ficiently retracted. 

State  v.  Baldwin  (N.  C.),  100  S.  E.  345. 

Invited  Error.— In  a  prosecution  for  selling  intoxicat- 
ing liquor,  defendant  could  not  complain  of  the  refusal  to 
exclude  evidence  of  other  sales  in  his  place  of  business, 
near  the  time  of  the  sale  alleged,  where  the  evidence  was 
elicited  and  invited  on  cross-examination  by  his  counsel. 
Bundy  v.  State  (Okla.  Cr.  App.),  184  Pac.  795. 

Abandonment. 

Brief — Abandonment  of  Right  to  Raise  by  Demur- 
rer.— A  question  sought  to  be  made  by  demurrer  but  not 
argued  in  the  brief  of  plaintiff  in  error,  will  be  treated  as 
abandoned. 

Burgan  v.  State  (Ga.  App.),  99  S.  E.  636. 

After  Plea  of  Guilty. — Where  defendant  entered  a  plea 
of  guilty  to  a  charge  of  the  unlawful  manufacturing  of  in- 
toxicating liquors,  and  was  assessed  the  lowest  penalty, 
he  is  not  in  a  position  to  urge  as  a  ground  for  reversal  the 
insufficiency  of  the  evidence  to  prove  his  guilt. 

Coats  v.  State  (Tex.  Cr.  App.),  215  S.  W.  856. 

Certiorari. — Where  the  evidence  was  sufficient  to  sup- 
port the  inference  that  a  sale  of  whisky  had  been  consum- 
mated by  delivery  in  exchange  for  an  agreed  purchase  price 
accepted  by  the  defendant  at  the  time,  an  appellate  court 
cannot  hold  that  the  judge  of  the  superior  court  erred  in 
overruling  a  certiorari  where  error  was  assigned  upon  gen- 
eral grounds  only. 

Stocks  v.  State,  19  Ga.  App.  607,  91  S.  E.  944. 

See  also,  Barbour  v.  State  (Ga.  App.),  99  S.  E.  782. 

A  judgment  adjudicating  a  contempt  for  violation  of  a 
liquor  injunction  is  not  reviewable  de  novo  on  certiorari, 


330  TITLE  II— SEC.  32  OF  ACT 

despite  the  concession  of  defendant,  judge  of  the  district 
court  which  adjudicated  the  contempt,  that  it  is  so  review- 
able. 

Bird  v.  Sears  (la.),  173  N.  W.  925. 

Writ  of  Prohibition. — Where  a  lower  court  is  proceed- 
ing out  of  its  jurisdiction  in  attempting  to  try  indictments 
against  a  carrier  under  a  statute,  and  defendant,  if  con- 
victed, would  have  no  adequate  remedy  by  appeal,  and 
would  receive  irreparable  injury,  a  writ  of  prohibition  to 
prevent  such  trials  must  issue. 

Adams  Exp.  Co.  v.  Young,  184  Ky.  49,  211  S.  W.  407. 

XVI.  Costs  and  Expenses. 

Where  a  claimant  unsuccessfully  defends  a  suit  for  for- 
feiture of  liquors  shipped  without  proper  labels,  the  court 
may,  where  the  facts  justify  it,  adjudge  the  costs  and  ex- 
penses against  him. 

Williams  v.  United  States  (C.  C.  A.),  254  Fed.  48. 

In  a  prosecution  in  Colorado  for  violating  the  prohibition 
law,  a  taxation  of  jury  fees,  bailiff's  fees,  meals  for  jury, 
and  bailiff  and  stenographer,  is  improper. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

The  words,  "expenses  incurred  and  disbursements  made 
by  and  under  the  direction  of  district  attorney,"  have  ref- 
erence to  ordinary  expenses,  including  amounts  actually 
disbursed,  or  for  which  he  made  himself  personally  liable, 
such  as  hotel  bills,  railroad  fare,  etc.,  incurred  while  pros- 
ecuting violaters  of  Prohibition  Law,  but  does  not  include 
employment  of  agents  by  the  month  to  travel  over  the 
county  to  ferret  out  possible  offenders  and  gather  evidence. 
(Per  Bennett,  J.) 

Irwin  v.  Klamath  County  (Ore.),  183  Pac.  780. 


TITLE  II— SEC.  33 
Evidence. 

I.  Presumptions  and  Burden  of  Proof. 

1.  Constitutionality  of    Provision. 

2.  Possession   Presumptively  Illegal. 

3.  Proof  of   Intoxicating  Character. 

4.  Presumption   as  to   Agency. 

5.  Presumption  from  Tax  Receipt. 

6.  Generally  as  to  Illegal  Acts. 

II.  Questions  of  Law  and  Fact. 
HI.  Judicial  Notice. 

IV.  Proof  of  Time. 

V.  Variance. 

VI.  Admissibility,  Relevancy  and  Competency. 

1.  Relevancy  Must  Appear. 

2.  Statutory  Regulations. 

3.  Offenses  Charged  in  Alternative. 

4.  Res  Gestae. 

5.  Circumstantial  Evidence. 

6.  Confessions  and  Admissions. 

7.  Incriminating   Questions — Privilege. 

8.  Evidence  at  Former  Trial. 

9.  Former  Acquittal   or   Conviction. 

10.  Indictment  or  Conviction  for  Different  Offenses. 

11.  Scienter  and  Intent. 

12.  Possession  as  Evidence. 

13.  Possession  of   Premises. 

14.  Character  of   Defendant's   Business. 

15.  Reputation  as  Seller  of  Intoxicants. 

16.  Proof  of  Other  Sales  by  Accused. 

17.  Possession  of  Tax  Receipt. 

18.  Proof  of  Intoxicating  Character  of  Liquor. 

19.  Proof  of  Solicitation  of  Orders. 

20.  Ordering  and   Receiving   Large   Quantities. 

21.  Records  of   Express  and  Railway  Companies. 

22.  Testimony   of    Express   and   Railway   Agents. 


332  TITLE  II— SEC.  33  OF  ACT 

23.  Proof  of  Lawfulness  of  Possession. 

24.  Sales  as  Evidence  of   Unlawful  Possession  and 

Manufacture. 

25.  Unlawful  Issuance  of   Prescriptions. 

26.  Miscellaneous  Questions  of  Relevancy. 

VII.  Weight  and  Sufficiency  of  Evidence. 

1.  \Yeight  of  Circumstantial  Evidence. 

2.  Evidence  of  Detective,  Accomplice,  etc. 

3.  To  Prove  Intoxicating  Character. 

4.  To  Prove  Manufacture  or  Possession  of  Appara- 

tus. 

5.  To  Prove  Sale  or  Offering  for  Sale. 

6.  To  Prove  Unlawful   Possession. 

7.  To  Prove  Introduction,  Transportation  or  Deliv- 

ery. 

8.  Miscellaneous  Questions  of   Sufficiency. 

VIII.  Impeachment  of  Witnesses. 

SEC.  33.  After  February  1,  1920,  the  possession  of 
liquors  by  any  person  not  legally  permitted  under  this 
title  to  possess  liquor  shall  be  prima  facie  evidence  that 
such  liquor  is  kept  for  the  purpose  of  being  sold,  bar- 
tered, exchanged,  given  away,  furnished,  or  otherwise 
disposed  of  in  violation  of  the  provision  of  this  title. 
Every  person  legally  permitted  under  this  title  to  have 
liquor  shall  report  to  the  commissioner  within  ten  days 
after  the  date  when  the  eighteenth  amendment  of  the 
Constitution  of  the  United  States  goes  into  effect,  the 
kind  and  amount  of  intoxicating  liquors  in  his  posses- 
sion. But  it  shall  not  be  unlawful  to  possess  liquors  in 
one's  private  dwelling  while  the  same  is  occupied  and 
used  by  him  as  his  dwelling  only  and  such  liquor  need 
not  be  reported,  provided  such  liquors  are  for  use  only 
for  the  personal  consumption  of  the  owner  thereof  and 
his  family  residing  in  such  dwelling  and  of  his  bona 
fide  guests  when  entertained  by  him  therein;  and  the 
burden  of  proof  shall  be  upon  the  possessor  in  any  ac- 


TITUJ  II— SEC.  33  OF  ACT  333 

tion  concerning  the  same  to  prove  that  such  liquor  was 
lawfully  acquired,  possessed,  and  used. 

I.  Presumptions  and  Burden  of  Proof. 

1.  CONSTITUTIONALITY  OP  PROVISION. 

It  being  within  the  Legislature's  power  to  fix  the  rules 
of  evidence,  where  it  makes  possession  of  liquor  prima 
facie  evidence  of  guilt  of  violation  of  the  prohibition  stat- 
ute, it  does  not  deprive  defendant  of  due  process  of  law. 

Dees  v.  State  (Ala.  App.),  75  So.  645. 

State  v.  Tincher,  181  W.  Va.  441,  94  S.  E.  503. 

The  law  making  the  possession  of  more  than  one  gallon 
of  spirituous  liquor  prima  facie  evidence  of  keeping  it  for 
sale  in  violation  of  law,  is  constitutional. 

State  v.  Randall,  170  N.  C.  757,  87  S.  E.  227,  Ann. 
Cas.  1918A,  438. 

A  statute,  making  the  possession  of  more  than  a  certain 
amount  of  intoxicating  liquor  prima  facie  evidence  of  an 
intent  to  violate  provisions  of  the  prohibitory  law,  is  not 
unconstitutional  as  invading  the  province  of  the  judiciary, 
and  depriving  the  accused  of  the  presumption  of  innocence, 
or  as  making  prima  facie  evidence  of  guilt  a  fact  which  has 
no  relation  to.  or  does  not  tend  to  prove,  the  criminal  act. 

Sellers  v.  State,  11  Okla.  Cr.  App.  588,  149  Pac.  1071. 

Le  Clair  v.  White,  117  Me.  335,  104  Atl.  516. 

Cannot  Be  Made  Conclusive. — But  a  law  which  pro- 
vides that  the  liquors  in  the  possession  of  any  person  may 
be  seized  and  shall  be  conclusive  evidence  of  the  unlawful 
keeping,  storing  and  selling  of  same  by  the  person  having 
such  liquors  in  his  possession,  so  far  as  it  makes  such  pos- 
session conclusive  evidence  is  unconstitutional  and  void. 
State  v.  Sixo,  77  W.  Va.  243,  87  S.  E.  267. 

Within  certain  limitations,  the  Legislature  may  enact  that 
when  specified  facts  have  been  proved,  they  shall  be  prima 
facie  evidence  of  the  guilt  of  the  accused,  and  shift  the 
iburden  of  proof  upon  him. 

Griffin  v.  State,  142  Ga.  636,  83  S.  E.  540. 

Kunsberk  v.  State,  147  Ga.  591,  95  S.  E.  12. 


334  TITLE  II— SEC.  33  OF  ACT 

Thus  a  statute  making  the  possession  of  more  than  a 
certain  amount  of  intoxicating  liquor  prima  facie  evidence 
of  an  intent  to  violate  the  provisions  of  a  prohibitory  law 
is  not  unconstitutional  as  invading  the  province  of  the  ju- 
diciary and  depriving  the  accused  of  the  presumption  of 
innocence,  nor  as  making  prima  facie  evidence  of  guilt  a 
fact  which  has  no  relation  to,  or  does  not  tend  to  prove, 
the  criminal  act. 

Caffee  v.  State,  11  Okla.  Cr.  App.  485,  148  Pac.  680. 

Southern  Exp.  Co.  v.  Whittle,  194  Ala.  406,  69  So. 
652,  L.  R.  A.  1916C,  278. 

2.  POSSESSION  PRESUMPTIVELY  ILLEGAL. 

By  statute  in  a  number  of  states  the  finding  of  liquor  in 
unusual  quantity,  or  in  quantity  above  a  certain  specified 
amount,  in  the  possession  of  the  accused  or  in  a  building 
or  upon  premises  under  his  control,  creates  a  presumption 
that  the  liquor  is  kept  for  sale  or  other  unlawful  purpose 
and  places  upon  him  the  burden  of  showing  the  contrary. 

See  Campbell  v.  State  (Ala.  App.),  78  So.  715. 

State  v.  Blackwell,  103  Wash.  337,  174  Pac.  646. 

True  v.  Hunter,  174  la.  442,  156  N.  W.  363. 

Nies  v.  Jepson,  174  la.  188,  156  N.  W.  292. 

State  v.  Jarvis   (la.),  165  N.  W.  61. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 

State  v.  Theodore  (Mo.),  191  S.  W.  422. 

State  v.  Rawlings,  232  Mo.  544,  134  S.  W.  530. 

State  v.  Bunker  (Mo.  App.),  206  S.  W.  399. 

Carter  v.  Commonwealth,  123  Va.  810,  96  S.  E.  766. 

State  v.  Tincher,  81  W.  Va.  441,  94  S.  E.  503. 

Thus  it  is  held  that  the  keeping  of  whisky  in  a  building 
not  used  exclusively  for  a  dwelling  is  prima  facie  evidence 
that  it  is  kept  for  sale,  or  other  unlawful  disposition. 
Campbell  v.   State    (Ala.   App.),   78   So.   715. 

And  in  a  prosecution  for  having  in  excess  of  one-half 
gallon  of  intoxicating  liquors  other  than  beer  the  burden 
of  rebutting  the  statutory  presumption  arising  from  pos- 
session of  excess  was  on  accused. 

State  v.  Blackwell,  103  Wash.  337,  174  Pac.  646. 


TITLE  II— SEC.  33  OF  ACT  335 

So  where  a  grip  containing  fifteen  pints  of  whisky  was 
found  in  defendant's  hotel  premises,  and  in  his  possession, 
the  presumption  was  that  the  whisky  was  kept  there  by 
defendant  for  sale,  putting  the  burden  on  him  to  explain 
the  possession  and  show  that  the  whisky  was  not  kept  with 
intent  to  sell. 

State  v.  Jarvis  (la.),  165  N.  W.  61. 

Under  the  Mapp  prohibition  law  of  Virginia  prohibiting 
the  transportation,  receipt  or  possession  of  liquor  except 
under  certain  specified  conditions,  the  state  makes  out  a 
case  by  showing  the  possession  of  the  liquor.  The  burden  is 
then  upon  the  accused  to  prove  any  defense  he  may  have 
to  offer. 

Carter  v.  Commonwealth,  123  Va.  810,  96  S.  E.  766. 

If  unlawful  sales  of  intoxicating  liquor  are  shown,  it  is 
presumed  the  liquor  was  kept  with  an  unlawful  intent. 

Bowers  v.  Maas,  154  la.  640,  135  N.  W.  25. 

Such  presumptions  are  not  objectionable  as  constructive 
findings  of  guilt  and  they  may  be  made  applicable  to  con- 
tempt proceedings  for  violation  of  injunctions  against  the 
sale  of  intoxicants. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 

Presumption  as  to  Ownership  of  Liquor  Found  in 
Possession. — There  is  a  presumption  that  whisky  in  the 
possession  of  and  sold  by  a  merchant  belongs  to  him. 

Rash  v.  State,  13  Ga.  App.  262,  69  So.  239. 

Weight  of  Statutory  Presumption. — The  term  "printa 
facie  evidence,"  as  used  in  a  statute  making  proof  of  cer- 
tain facts  prima  facie  evidence  of  guilt,  is  such  evidence  as 
in  the  judgment  of  the  law,  is  sufficient  to  establish  the  fact, 
if  it  be  credited  by  the  jury,  and  which,  unless  rebutted  or 
the  contrary  proved,  remains  sufficient  for  that  purpose. 
Whether  or  not  such  evidence  is  sufficient  to  overcome  the 
presumption  of  innocence  of  a  defendant  and  to  establish 
his  guilt  beyond  a  reasonable  doubt,  when  all  the  evidence 


336  TITLE  II— SEC.  33  OF  ACT 

including  the  presumptions  are  considered,  is  for  the  de- 
termination of  the  jury. 

Huff  v.  State,  12  Okla.  Cr.  App.  138,  152  Pac.  464. 
Caffee  v.  State,  11  Okla.  Cr.  App.  485,  148  Pac.  680. 
Sellers  v.  State,  11  Okla.  Cr.  App.  588,  149  Pac.  1071. 
Wilson  v.  State,  11  Okla.  Cr.  App.  510,  148  Pac.  823. 
Conley  v.  State  (Okla.  Cr.  App.),  179  Pac.  480,  483. 
». 

Acts  1915,  p.  9,  §  4,  providing  that  keeping  of  prohibited 

liquors  in  any  building  not  used  exclusively  for  a  dwelling 
shall  be  prima  facie  evidence  that  such  liquors  are  kept  for 
sale,  etc.,  creates  a  presumption  of  law  which  rebutting 
evidence  does  not  nullify  or  destroy ;  such  presumption  of 
guilt  being  an  evidential  fact  for  consideration  in  deter- 
mining the  guilt  or  innocence  of  the  defendant. 

Maisel  v.  State  (Ala.  App.),  81  So.  348. 

Such  presumptions  have  been  held  not  to  create  a  new 
rule  of  evidence,  but  to  merely  enlarge  the  application  of 
an  existing  rule  of  evidence. 

State  v.  Butler   (la.),  173  N.  \Y.  239. 

The  presumption  of  Code  of  Iowa,  §  2427,  that  the  find- 
ing of  liquor  creates  the  presumption  that  it  was  kept  with 
unlawful  intent  does  not  create  a  new  rule  of  evidence,  but 
merely  enlarges  the  application  of  a  rule  of  evidence. 

State  v.  Butler  (la.),  173  N.  W.  239. 

Under  presumptions  of  this  character  the  jury  is  to  con- 
sider the  case  in  the  light  of  all  the  evidence  including  the 
statutory  presumption  of  guilt  on  the  one  hand  and  the 
presumption  of  innocence  on  the  other.  In  short,  the  pre- 
sumption raised  by  the  statute  may  be  rebutted  or  the  con- 
trary may  be  shown. 

Caffee  v.  State,  11  Okla.  Cr.  App.  485,  148  Pac.  680. 
Neal  v.  Commonwealth  (Va.),  98  S.  E.  629. 
Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652. 
Lane  v.  Commonwealth,  122  Va.  916,  95  S.  E.  466. 
Aaron  v.  State,  18  Ariz.  378,  161  Pac.  881. 

The  prima  facie  presumption  of  the  unlawful  introduc- 
tion of  intoxicating  liquor  into  Indian  Territory,  etc.,  de- 


TITLE  II— SEC.  33  OF  Aci  337 

clared  by  Act  May  18,  1916,  §  1  (Comp.  St.  §  4144a),  may 
be  rebutted  by  evidence  to  the  contrary. 

Castle  v.  Lewis  (C.  C.  A.),  254  Fed.  917,  918. 

Under  a  provision  declaring  that  the  keeping  in  excess  of 
a  certain  amount  of  intoxicating  liquor  shall  be  prima  fa- 
cie evidence  of  an  intention  to  convey,  sell  or  otherwise 
dispose  of  such  liquors,  evidence  of  such  possession  is  suf- 
ficient to  establish  the  unlawful  intent,  unless  rebutted,  or 
the  contrary  proved,  yet  it  does  not  make  it  obligatory 
upon  the  jury  to  convict  after  the  presentation  of  such 
proof  but  such  evidence  is  competent  and  sufficient  to  jus- 
tify a  jury  in  finding  a  defendant  guilty,  provided  it  does 
in  effect  satisfy  them  of  his  guilt  beyond  a  reasonable  doubt. 
Caffee  v.  State,  11  Okla.  Cr.  App.  485,  148  Pac.  680. 

"In  the  case  of  Pine  v.  Commonwealth,  121  Va.  812,  93 
S.  E.  652,  this  court  decided  that  the  Prohibition  Act  does 
not  interdict  the  possession  in  a  home  for  private  use  of 
distilled  liquor,  wine,  beer,  or  other  malt  liquor,  the  pos- 
session of  which  was  lawfully  acquired,  but  merely  de- 
clares that  the  possession  of  more  than  the  specified  quan- 
tity shall  be  prima  facie  evidence  of  a  'purpose  of  sale.' 
This  presumption  is  simply  a  rule  of  evidence,  and,  like 
other  presumptions,  may  be  rebutted." 

Neal  v.  Commonwealth  (Va.),  98  S.  E.  629. 

"Possession  of  more  than  the  specified  quantity  of  arde"nt 
spirits  'shall  be  prima  facie  evidence  of  a  purpose  of  sale, 
merely  establishes  a  rule  of  evidence  *  *  *  The  pre- 
sumption is  merely  prima  facie  and  may  be  rebutted.' 
When  the  commonwealth  has  proved  the  possession  of 
more  than  the  specified  quantity  of  ardent  spirits,  etc.,  and 
there  is  no  rebuttal  evidence  of  that  fact,  and  none  that  it 
was  lawfully  acquired,  and  was  in  the  possession  of  the 
accused  in  his  home  for  private  use  and  not  for  sale,  the 
prima  facie  presumption  prescribed  by  the  Prohibition  Act 
that  it  was  kept  for  the  purpose  of  sale  would  generally 
be  sufficient  to  warrant  a  conviction.  We  say  generally, 
because  it  is  possible  to  conceive  a  situation  in  which  the 
commonwealth's  own  evidence  of  possession  might  be  such 
as  to  repel  the  presumption  that  it  was  unlawful.  As  in 
negligence  cases,  it  sometimes  happens  that  plaintiff's  evi- 
—22 


338  TITLE  II— SEC.  33  OF  ACT 

dence  develops  such  a  case  of  contributory  negligence  as 
would  bar  a  recovery.  In  the  present  case  as  observed,  the 
evidence  on  behalf  of  the  accused  tends  to  show  the  law- 
ful acquisition  and  possession  of  the  beverages  in  question; 
and  the  jury  was  confronted  by  a  prima  facie  presumption 
that  the  decoction  was  in  the  possession  of  the  accused  for 
the  purpose  of  sale,  on  the  one  hand  and  by  the  presump- 
tion of  innocence  fortified  by  rebuttal  evidence  on  the  other. 
In  such  case,  the  burden  of  proof  to  establish  the  guilt  of 
the  accused  beyond  a  reasonable  doubt  rested  on  the  com- 
monwealth, and  constituted  a  continuing  burden,  which  in- 
heres in  every  stage  of  the  prosecution." 

Neal  v.  Commonwealth  (Va.),  98  S.  E.  629,  630. 

"In  the  case  of  State  v.  Wilkerson,  164  N.  C.  431,  at  page 
435,  79  S.  E.  888,  at  page  890,  in  ^a  similar  prosecution  un- 
der the  Prohibition  Act  of  that  State  (the  language  of  which 
in  the  matter  here  involved  is  practically  identical  with  that 
of  our  own  statute)  the  court  says:  The  jury  were  in- 
structed that  the  fact  of  his  (accused)  having  in  his  posses- 
sion more  than  one  gallon  of  the  liquor  made  out  a  prima 
facie  case  against  the  defendant.  If  the  court  had  stopped 
here,  and  not  qualified  this  instruction,  it  would  have  been 
correct :  but  it  did  not  do  so,  but  went  beyond  the  terms  of 
the  statute  and  the  law  when  it  further  charged  that  it  then 
was  duty  of  the  defendant  to  go  forward  and  satisfy  the 
jury,  by  the  greater  weight  of  the  evidence,  that  he  did  not 
have  the  liquor  in  his  possession  for  the  purpose  of  sale. 
In  this  further  instruction  we  think  there  was  error.  The 
court  then  proceeds  to  show  that  it  was  the  province  of  the 
jury  to  consider  the  case  in  the  light  of  all  the  evidence,  giv- 
ing weight  to  the  prima  facie  presumption  on  the  one  side, 
the  presumption  of  innocence  on  the  other,  and  all  the  evi- 
dence adduced.  This  case  was  approved  and  followed  in 
State  v.  Russell,  164  N.  C.  482,  80  S.  E.  66,  where  it  was 
held.  Where  the  statute  makes  the  possession  by  one  per- 
son of  a  certain  quantity  of  spirituous  liquor  prima  facie 
evidence  of  an  unlawful  intent  to  sell,  the  burden  of  the  is- 
sue remains  on  the  state  to  show  the  guilt,  as  charged  in 
the  indictment,  beyond  a  reasonable  doubt ;  and  when  the 
prima  facie  case  has  been  established,  under  the  provision 
of  the  statute,  it  does  not  forestall  the  verdict,  for  it  only 


TITLE  II— SEC.  33  OF  ACT  339 

means  that  as  evidence  it  is  sufficient  to  establish  the  ulti- 
mate fact  of  guilt,  and  the  jury  may  convict  if  they  find 
that  it  is  not  explained  or  rebutted.  The  presumption  of 
innocence  is  still  with  the  prisoner,  and  the  burden  contin- 
ues to  rest  upon  the  state  to  show  guilt  beyond  a  reasonable 
doubt." 

Neal  v.  Commonwealth  (Va.),  98  S.  E.  629,  631. 

In  the  absence  of  rebutting  evidence  the  statutory  pre- 
sumption is  in  and  of  itself  sufficient  to  support  a  convic- 
tion, and,  logically,  should  prevail,  and  it  has  been  held  in 
some  jurisdictions  that,  unrebutted,  it  must  prevail. 

Gillespie  v.  State,  96  Miss.  856,  51  So.  811. 

Aaron  v.  State,  18  Ariz.  378,  161  Pac.  881. 

.  Under  a  statute  providing  that  the  fact  that  any  person 
has  in  his  possession  appliance  adapted  to  retailing  liquors 
shall  be  presumptive  evidence  that  the  person  owning  the 
same  is  engaged  in  illegally  selling  intoxicating  liquors,  such 
presumption  must  prevail  in  the  absence  of  any  proof  in  de- 
nial of  the  charge. 

Gillespie  v.  State,  96  Miss.  856,  51  So.  811. 

Where  the  state  has  shown  an  introduction  of  intoxicat- 
ing liquor  in  violation  of  the  constitutional  prohibition 
amendment,  it  has  made  out  a  prima  facie  case  authorizing  a 
conviction  of  the  person  or  persons  introducing  it,  and  such 
person  to  escape  conviction,  must  successfully  and  satisfac- 
torily show  that  the  liquor  was  introduced  for  a  lawful  pur- 
pose. 

Aaron  v.  State,  18  Ariz.  378,  161  Pac.  881. 

State  v.  Tincher,  81  W.  Va.  441,  94  S.  E.  503. 

Under  other  statutes,  even  if  the  accused  kept  liquors  on 
the  premises  of  another  without  his  consent  such  keeping 
when  shown,  would  be  prima  facie  evidence  that  the  keep- 
ing was  for  sale  or  with  intent  to  sell  the  same  contrary  to 
law,  and  the  fact  of  ownership  or  possession  of  the  prop- 
erty where  such  liquors  were  kept  would  be  merely  a  matter 
of  evidence  pertinent  to  the  question  as  to  who  was  respon- 
sible for  such  keeping. 

Stout  v.  State,  15  Ala.  App.  206,  72  So.  762. 


340  TITLE  II— SEC.  33  OF  ACT 

Whether  Building  Used  Exclusively  as  a  Dwelling. — 

A  statute  providing  that  the  keeping  of  prohibited  liquors 
in  any  building  not  used  exclusively  for  a  dwelling  shall  be 
prima  facie  evidence  that  they  are  kept  for  sale,  does  not 
apply  where  a  jug  of  whisky  was  hid  in  a  patch  of  weeds 
back  of  the  garden  of  defendant's  brother,  whom  defendant 
was  visiting  at  the  time. 

Willingham  v.  State,  11  Ala.  App.  205,  65  So.  847. 

Whether  or  not  a  building  was  a  dwelling,  or  used  exclu- 
sively as  a  dwelling,  is  generally,  in  the  absence  of  statutory 
definition  or  description,  a  question  for  the  jury. 

Stokes  v.  State,  5  Ala.  App.  159,  59  So.  310. 

Bare  v.  Commonwealth,  122  Va.  783,  94  S.  E.  168,  169. 

Where  there  was  evidence  that  accused  had  a  store  and 
a  house  on  the  same  premises,  that  men  not  members  of 
accused's  family  ate  and  slept  in  the  house,  that  liquors  in 
convenient  packages  for  illicit  sale  were  found  in  the  house, 
and  that  men  under  influence  of  intoxicants  were  frequently 
seen  on  his  premises,  it  was  a  question  for  the  court  sitting 
as  a  jury  whether  the  house  was  a  building  not  used  exclu- 
sively for  a  dwelling  within  Act  Aug.  25,  1909  (Acts  Sp. 
Sess.  1909,  p.  64),  §  4  providing  that  the  keeping  of  pro- 
hibited liquors  in  a  building  not  so  exclusively  used  shall  be 
prima  facie  evidence  that  they  are  kept  for  sale,  or  with  in- 
tent to  sell  contrary  to  law,  and  hence  the  admission  of  evi- 
dence that  the  liquors  were  found  in  the  house  was  compe- 
tent. 

Stokes  v.  State,  5  Ala.  App.  159,  59  So.  310. 

In  a  prosecution  for  unlawfully  dispensing  cider  contain- 
ing more  than  1  per  cent  of  alcohol,  in  violation  of  the  Mapp 
prohibition  law,  cider  having  been  made  by  defendant  from 
his  own  fruit,  if  there  is  a  doubt  as  to  whether  the  building 
wherein  the  cider  was  given  away  was  part  of  defendant's 
bona  fide  home,  the  question  should  be  submitted  to  the  jury, 
to  determine  from  the  evidence  the  question  of  fact  whether 
such  was  the  case. 

Bare  v.  Commonwealth,  122  Va.  783,  94  S.  E.  168,  169. 
Proof  that  defendant  kept  whisky  in  his  home,  not  used 


TITUJ  II— SEC.  33  OF  ACT  341 

exclusively  for  a  dwelling,  made  a  prima  facie  case  against 
him  under  the  express  provision. 

Dunn  v.  State,  8  Ala.  App.  382,  62  So.  379. 

Limits  of  Presumption;  Rebuttal.— The  accused  may 
by  any  competent  evidence  rebut  the  presumption  arising 
from  the  possession  of  liquors  seized,  and  must  do  so  to  es- 
cape conviction  under  such  indictment. 

State  v.  Tincher,  81  W.  Va.  441,  94  S.  E.  503. 

Effect  of  the  Legal  Presumption.— Under  a  statute  de- 
claring that  the  keeping  in  excess  of  a  certain  amount  of 
intoxicating  liquor  "shall  be  prima  facie  evidence  of  an  in- 
tention to  convey,  sell,  or  otherwise  dispose  of  such  liquor," 
it  is  error  to  charge  that  "the  keeping  in  excess  of  one  gallon 
of  spirituous  liquor  constitutes  prima  facie  evidence  of  in- 
tent to  convey,  sell,  or  otherwise  dispose  of  such  liquor,  and 
places  upon  the  defendant  the  burden  of  raising  a  reasonable 
doubt  of  his  guilty  intent  to  so  convey,  sell,  or  dispose  of 
such  liquor,"  since  the  statute  only  means  to  make  such  evi- 
dence competent  and  sufficient  to  establish  the  unlawful  in- 
tent, unless  rebutted  or  the  contrary  proved ;  yet  it  does  not 
make  it  obligatory  upon  the  jury  to  convict  after  the  pres- 
entation of  such  proof.  Whether  or  not  such  evidence  is 
sufficient  to  overcome  the  presumption  of  innocence  of  a  de- 
fendant, and  to  establish  his  guilt  beyond  a  reasonable  doubt, 
when  all  the  evidence  including  the  presumptions  is  consid- 
ered, is  for  the  determination  of  the  jury. 

Butler  v.  State,  12  Okla.  Cr.  App.  530,  159  Pac.  1090. 

The  finding  of  liquor  on  Sunday  in  the  locked  room  of  a 
hotel  kept  by  the  defendant's  wife  and  the  presence  of  men 
in  the  room  with  the  liquor  raised  no  presumption  against 
him ;  he  not  being  the  proprietor. 

Nies  v.  Jepson,  174  la.  188,  156  N.  W.  292. 

Under  a  statute,  providing  that  the  finding  of  intoxicating 
liquors  in  unusual  quantities  in  a  private  dwellng  or  its  de- 
pendencies of  any  person  keeping  a  tavern,  public  resort, 
house,  grocery,  or  other  place  of  public  resort,  shall  be  pre- 
sumptive evidence  that  such  liquors  are  kept  for  illegal  sale, 
no  presumption  arises,  from  the  finding  of  large  quantities 


342  TITLE  II— SEC.  33  OF  ACT 

of  beer  in  the  residence  of  an  individual  not  engaged  in  one 
of  the  numerated  businesses,  that  the  liquors  were  kept  for 
sale  in  violation  of  law. 

True  v.  Hunter,  174  la.  442,  156  N.  W.  363. 

Where  the  liquors  were  found  in  possession  of  a  teamster 
who  worked  for  a  druggist  and  there  was  no  showing  that 
the  teamster  had  knowledge  of  their  being  intended  for  an 
unlawful  purpose,  and  it  was  further  shown  that  it  was  pos- 
sible that  they  might  have  been  intended  for  the  purpose  of 
filling  prescriptions  lawfully  given,  it  was  held  that  the  pre- 
sumption, if  any,  was  rather  that  they  were  intended  for  a 
lawful  purpose,  and  that  a  conviction  could  not  be  had. 

State  v.  Bunker  (Mo.  App.),  206  S.  W.  399,  citing  State 
v.  Theodore  (Mo.),  191  S.  W.  422;  State  v.  Richard- 
son (Mo.  App.),  182  S.  W.  782;  State  v.  Rawlings, 
232  Mo.  544,  134  S.  W.  530. 

But  that  defendant  acknowledged  to  searching  officer  that 
she  had  liquor  in  her  house  and  told  where  it  was,  was  not 
conclusive  of  her  innocent  purpose  in  having  it  in  her  pos- 
session. 

Merri wether  v.  Tuscaloosa,  13  Ala.  App.  651,  69  So. 
258. 

Sufficiency  of  Explanation  of  Receipt  or  Possession 
of  Liquor. — Where  the  accused  offers  such  explanation  of 
his  receipt  or  possession  of  liquor  as  would,  if  true,  consti- 
tute a  good  defense  under  the  law,  the  question  whether  it 
is  true  is  for  the  jury. 

State  v.  Bradley,  109  S.  C.  411,  %  S.  E.  142. 

State  v.  Fountain  (la.),  168  N.  W.  285. 

Rogers  v.  State,  133  Ark.  85,  201  S.  W.  845. 

Wilson  v.  Commonwealth,  181  Ky.  370,  205  S.  W.  391. 

In  a  prosecution  for  possession  of  malt  liquor  for  the  pur- 
pose of  sale  in  violation  of  local  option  law,  evidence  show- 
ing shipment  to  defendant  of  unusual  quantities  of  intoxi- 
cating liquor  without  satisfactory  explanation  of  its  dispo- 
sition held  to  present  a  question  for  the  jury. 

Wilson  v.  Commonwealth,  181  Ky.  370,  205  S.  W.  391. 

In  such  a  prosecution,  it  is  a  question  for  the  jury  whether 


TITUS  II— SEC.  33  OF  ACT  343 

accused  received  whisky  by  express  and  used  it  unlawfully 
in  her  restaurant,  or  whether  it  had  been  given  her  and  was 
being  kept  temporarily  in  the  restaurant  until  she  could  take 
it  home. 

State  v.  Bradley,  109  S.  C.  411,  96  S.  E.  142. 

Whether  defendant  was  keeping  whisky  with  intent  to 
sell  or  to  give  to  his  employees  solely  as  a  gratuity,  or  to 
induce  them  to  continue  in  his  employment  at  lower  wages 
than  otherwise  he  must  have  paid,  held  under  the  evidence 
for  the  jury. 

State  v.  Fountain  (la.),  168  N.  W.  285. 

Evidence  regarding  the  taking  of  intoxicating  liquor  to  ac- 
cused's premises,  where  it  was  found  hidden,  etc.,  held  to 
make  a  jury  question  whether  accused  received  the  liquor  for 
storage,  distribution,  or  on  consignment  for  another. 
Rogers  v.  State,  133  Ark.  85,  201  S.  W.  845. 

Accused  Claiming  to  Have  Merely  Purchased  for 
Another. — On  the  trial  of  one  charged  with  selling  whisky, 
proof  that  he  received  money  from  another  person,  accom- 
panied by  a  request  to  procure  whisky  for  the  latter,  and 
thereafter  went  off,  and  returned,  and  delivered  a  quart  of 
whisky  to  that  person,  would  cast  on  the  accused  the  burden 
of  showing  where,  how,  and  from  whom  he  got  the  whisky. 
Whether  he  successfully  carried  this  burden,  either  by  his 
own  uncorroborated  testimony  or  otherwise,  would  be  a 
question  for  determination  by  the  jury. 

Grant  v.  State,  87  Ga.  265,  13  S.  E.  554. 

Mack  v.  State,  116  Ga.  546,  42  S.  E.  766,  59  L.  R.  A. 
602. 

Gaskins  v.  State,  127  Ga.  51,  55  S.  E.  1045. 

Benton  v.  State,  9  Ga.  App.  422,  71  S.  E.  498. 

Touchstone  v.  State,  17  Ga.  App.  333,  86  S.  E.  744. 

See  also,  Smith  v.  State,  14  Ga.  App.  577,  81  S.  E.  801. 

Where  the  state  offered  evidence  that  accused  delivered 
intoxicating  liquor  to  a  third  person  and  receiving  payment, 
and  accused  claimed  that  he  delivered  the  liquor  in  good 
faith  under  an  agreement  that  he  should  order  it  for  such 
person,  the  question  of  his  good  faith  was  for  the  jury. 
State  v.  Bailey,  168  N.  C.  168,  83  S.  E.  711. 


344  TITLE  II— SEC.  33  of  ACT 

Where  on  trial  for  having  possession  of  intoxicating  liq- 
uor for  the  purpose  of  sale,  the  evidence  tended  to  show  that 
accused  purchased  the  liquor  in  another  state  as  agent  for 
other  persons  who  sent  him  there  for  the  purpose  of  buying 
it  for  them,  and  who  gave  him  the  money  with  which  to  pay 
therefor  and  paid  him  for  his  service,  and  that  he  brought 
it  within  the  state  for  the  purpose  of  distributing  it  to  them, 
his  intent,  and  whether  the  transaction  was  a  sale,  were 
questions  for  the  jury. 

State  v.  Wilkerson,  164  N.  C.  431,  79  S.  E.  888. 

\\hether  one  accused  of  selling  whisky  was  acting  solely 
as  agent  of  the  purchaser,  or  had  a  pecuniary  interest  in  pro- 
curing the  purchase,  was  for  the  jury. 

Snead  v.  State,  134  Ark.  303,  203  S.  W.  703. 

And,  where  the  evidence  although  insufficient  to  satisfy 
the  jury  beyond  a  reasonable  doubt  that  the  accused  partici- 
pated in  the  sale  of  whisky,  was  of  such  a  nature  as  to  com- 
pel the  conclusion  that  the  accused  was  participating  in  the 
illegal  sale  of  lager  beer,  unless  the  transaction  could  be  sat- 
isfactorily explained,  the  question  as  to  whether  the  explana- 
tion was  satisfactory  was  one  solely  for  the  jury. 

Dent  v.  State,  14  Ga.  App.  269,  80  S.  E.  548. 

3.  PROOF  OF  INTOXICATING  CHARACTER. 

It  being  a  matter  of  common  knowledge  that  whisky  is  an 
intoxicating  liquor,  and  that  liquors  containing  no  more  than 
1  per  cent  of  alcohol  are  not  intoxicating,  it  need  not  be 
shown  that  the  whisky  found  in  defendant's  place  of  busi- 
ness contained  more  than  1  per  cent  of  alcohol  in  order  to 
secure  conviction. 

State  v.  Bradley,  109  S.  C.  411,  96  S.  E.  142. 

But  when  the  alleged  violation  of  a  prohibition  law  con- 
sists in  a  sale  of  beer,  the  prosecution  must  prove  directly 
or  circumstantially  that  it  was  a  malt  or  an  intoxicating  beer. 

Lumpkin  v.  Atlanta,  9  Ga.  App.  470,  71  S.  E.  755. 
Cripe  v.  State,  4  Ga.  App.  832,  62  S.  E.  567. 
Du  Vail  v.  Augusta,  115  Ga.  813,  42  S.  E.  265. 
Martin  v.  Rome,  9  Ga.  App.  574,  71  S.  E.  879. 


TITLE  II— SEC.  33  OF  ACT  345 

Elsewhere  it  is  held  that  where  the  liquor  in  defendant's 

possession  is  proven  to  be  beer,  which  is  a  malt  liquor,  the 

court  will  presume  that  it  is  intoxicating  without  proof  of 

that  fact,  though  defendant  may  rebut  such  presumption. 

Hoskins  v.  Commonwealth,  171  Ky.  2(H,  188  S.  W.  348. 

To  warrant  a  conviction  for  the  sale  of  malt  liquor  and 
other  liquors  specifically  enumerated  in  a  statutory  definition 
of  intoxicating  liquors,  it  is  only  necessary  to  prove  that  the 
thing  sold  was  one  of  the  classes  named ;  but  as  to  other  liq- 
uors, or  liquids,  capable  of  being  used  as  a  beverage,  it  is 
necessary  to  prove  their  intoxicating  property. 

State  v.  Hemrich,  93  Wash.  439,  161  Pac.  79,  L.  R.  A. 
191 7B,  962n. 

Where  defendant  was  indicted  for  being  interested  in  the 
sale  of  intoxicating  liquor  called,  "Buk,"  it  was  necessary 
for  the  state  to  prove  the  sale  of  such  liquor,  and  that  it  was 
intoxicating,  and  a  conviction  could  not  be  based  upon  evi- 
dence showing  that  defendant  was  interested  in  the  sale  of 
beer. 

Carleton  v.  State,  129  Ark.  361,  196  S.  W.  124. 

In  a  prosecution  under  a  statute  making  it  unlawful  to 
sell  vinous  liquors  except  for  medicinal  or  sacramental  pur- 
poses, under  an  indictment  charging  accused  with  selling  to 
a  specified  person,  not  for  medicinal  or  sacramental  purposes, 
a  certain  vinous  liquor,  the  correct  name  of  which  was  to  the 
grand  jurors  unknown,  but  which  was  then  and  there  called 
cider,  the  state  must  prove  to  the  jury's  satisfaction  that  the 
accused  was  the  person  named  in  the  indictment,  that  the 
liquor  was  a  vinous  liquor  commonly  called  cider  and  that 
it  was  not  sold  for  medicinal  or  sacramental  purposes.  - 

State  v.  Coverdale,  1  Boyce's  (24  Del.)  555,  77  Atl.  754. 

WThere  the  liquor  is  shown  to  be  a  beverage  made  in  ac- 
cordance with  a  certain  formula  and  sold  generally  to  the 
trade  under  a  trade  name,  it  will  be  presumed  that  all  of  it 
is  made  in  accordance  with  the  formula  and  that  it  is  of  uni- 
form character  and  quality. 

State  v.  Clark,  124  La.  965,  50  So.  811. 

Question  for  Jury. — The  intoxicating  character  of  the 
liquor  which  the  accused  is  charged  to  have  sold  or  possessed 


346  TITLE  II— SEC.  33  OP  ACT 

is  a  question  for  the  jury  under  proper  definitions  and  in- 
structions from  the  court. 

Turner  v.  State,  14  Ala.  App.  29,  70  So.  971. 
Malick  v.  State  (Neb.),  169  N.  W.  5. 
State  v.  Coverdale,  1  Boyce's  (24  Del.)  555,  77  Atl.  754. 
Cooper  v.  State,  19  Ariz.  486,  172  Pac.  276. 

The  court  must  instruct  the  jury  as  to  what  constitutes 
intoxicating  liquor  within  the  contemplation  of  the  statute. 
This  is  not  a  matter  left  to  the  determination  of  each  sepa- 
rate jury  and  juror. 

United  States  v.  Schmauder  (D.  C.),  258  Fed.  251. 

Under  the  evidence,  the  question  as  to  whether  the  liquor 
described  in  the  information  was  intoxicating  was  a  question 
for  the  jury. 

Malick  v.  State  (Neb.),  169  N.  W.  5. 

In  a  prosecution  for  selling  malt  liquors  contrary  to  law, 
the  case  was  for  the  jury  where  the  state's  evidence  tended 
to  show  a  sale  of  "Schlitz"  beer  by  the  defendant. 

Turner  v.  State,  14  Ala.  App.  29,  70  So.  971. 

In  a  prosecution  for  illegal  sale  of  vinous  liquors,  not  for 
medicinal  or  sacramental  purposes,  it  is  for  the  jury  to  de- 
termine whether  the  liquor  in  question  was  or  was  not  vi- 
nous, adopting  as  correct  the  definition  of  vinous  liquor  as 
given  by  the  court. 

State  v.  Coverdale,  1  Boyce's  (24  Del.)  555,  77  Atl.  754. 

4.  PRESUMPTION  AS  TO  AGENCY. 

The  rule  is  well  settled  that  proof  that  one  charged  with 
selling  intoxicating  liquors,  who  receives  money  from  an- 
other person,  accompanied  with  a  request  to  procure  whisky 
for  the  latter,  and  shortly  thereafter  delivers  whisky  to 
such  other  person,  has  the  onus  upon  him  of  explaining 
where,  how,  and  from  whom  he  got  the  liquor,  and  that,  if 
the  explanation  offered  by  him  is  supported  only  by  his  own 
statement,  the  jury  are  authorized  to  find  him  guilty  if  they 


II— SEC.  33  OF  ACT 

believe  his  explanation  to  be  a  mere  subterfuge  to  cover  up 
an  illegal  sale  by  himself. 

Farmer  v.  State,  18  Ga.  App.  54,  88  S.  E.  797. 

Scott  v.  State,  18  Ga.  App.  309,  89  S.  E.  349. 

Langston  v.  Hazelhurst,  9  Ga.  App.  449,  71  S.  E.  592. 

Gaskins  v.  State,  127  Ga.  31,  55  S.  E.  1045. 

Simpson  v.  Eastman,  16  Ga.  App.  185,  84  S.  E.  721. 

Smith  v.  State,  14  Ga.  App.  577,  81  S.  E.  801. 

Mulling  v.  State,  17  Ga.  App.  828,  88  S.  E.  709. 

Lane  v.  Millen,  18  Ga.  App.  18,  88  S.  E.  748. 

Grant  v.  State,  87  Ga.  265,  13  S.  E.  554. 

White  v.  State,  93  Ga.  47,  19  S.  E.  49. 

Mack  v.  State,  116  Ga.  546,  42  S.  E.  776,  59  L.  R.  A. 
602. 

Bray  v.  Commerce,  5  Ga.  App.  605,  63  S.  E.  596. 

Highsmith  v.  Waycross,  7  Ga.  App.  611,  67  S.  E.  677. 

Cheatwood  v.  Buchanan,  9  Ga.  App.  828,  72  S.  E.  284. 

Myers  v.  State,  16  Ga.  App.  266,  85  S.  E.  206. 

Cowart  v.  State,  14  Ga.  App.  763,  82  S.  E.  313. 

Jones  v.  State,  12  Ga.  App.  564,  77  S.  E.  892. 

Shaw  v.  State,  3  Ga.  App.  607,  60  S.  E.  326. 

McGovern  v.  State,  11  Ga.  App.  267,  74  S.  E.  1101. 

Johnson  v.  State,  13  Ga.  App.  371,  79  S.  E.  178. 

Cooper  v.  Ft.  Valley,  13  Ga.  App.  169,  78  S.  E.  1097. 

Starr  v.  State,  12  Ga.  App.  360,  77  S.  E.  205. 

Jackson  v.  State,  13  Ga.  App.  147,  78  S.  E.  867. 

Slaughter  v.  State,  17  Ga.  App.  332,  86  S.  E.  741. 

Touchstone  v.  State,  17  Ga.  App.  333,  86  S.  E.  744. 

Wolf  v.  State,  16  Ga.  App.  250,  85  S.  E.  86. 

Fletcher  v.  State,  12  Ga.  App.  809,  78  S.  E.  478. 

Morgan  v.  Cedartown,  13  Ga.  App.  139,  78  S.  E.  863. 

George  v.  State,  17  Ga.  App.  555,  87  S.  E.  814. 

State  v.  Bailey,  168  N.  C.  168,  83  S.  E.  711. 

This  onus  is  not  shifted,  so  as  to  require  a  verdict  of  not 
guilty,  simply  by  the  statement  of  the  accused  that  he  acted 
merely  as  agent  for  the  purchaser,  and  obtained  the  whisky 
from  another  person  mentioned.  It  is  for  the  jury  to  de- 
termine the  actual  relation  of  the  defendant  to  the  act 
charged. 

Smith  v.  State,  14  Ga.  App.  577,  81  S.  E.  801. 

Mulling  v.  State,  17  Ga.  App.  828,  88  S.  E.  709. 


348  TITLE  II— SEC.  33  OF  ACT 

Simpson  v.  Eastman,  16  Ga.  App.  185,  84  S.  E.  721. 
Langston  v.  Hazlehurst,  9  Ga.  App.  449,  71  S.  E.  592. 
Starr  v.  State,  12  Ga.  App.  77  E.  S.  205. 

"The  rebutting  evidence  does  not  destroy  or  nullify  the 
presumption  arising  out  of  the  proven  facts,  and  itself  make 
an  evidential  fact  for  consideration  by  the  jury,  but  leaves 
the  question  for  the  determination  of  the  jury  under  all  of 
the  circumstances.  16  Cyc.  1070;  Marston  v.  Biegelow,  150 
Mass.  45,  22  N.  E.  71,  5  L.  R.  A.  43 ;  National  Mason  Acci. 
Ass'n  v.  Burr,  57  Neb.  437,  77  N.  W.  1098." 
Wynn  v.  State,  11  Ala.  App.  182,  65  So.  687. 

The  fact  that,  when  paying  the  money  to  the  accused, 
the  person  who  purchased  the  whisky  instructed  him  to  pro- 
cure the  whisky  from  a  particular  person,  and  that  the  ac- 
cused went  to  that  person  and  procured  the  whisky  from 
him,  does  not  remove  the  onus  resting  on  the  defendant  to 
show  how  he  procured  the  whisky,  and  therefore  fails  to 
negative  the  reasonable  inference  that  he  was  an  agent  of 
the  seller  as  well  as  of  the  buyer,  and  received  a  commis- 
sion on  the  sale. 

Scott  v.  State,  18  Ga.  App.  309,  89  S.  E.  349. 

Such  evidence  in  behalf  of  the  state,  if  credible  to  the 
jury,  authorized  the  inference  that  defendant  was  the  agent 
of  one  who  unlawfully  sold  whisky,  and  cast  upon  him  the 
burden  of  rebutting  this  possible  inference. 

George  v.  State,  17  Ga.  App.  555,  87  S.  E.  814. 

This  burden  would  be  successfully  carried  by  the  accused 
if,  in  corroboration  of  his  own  statement,  he  proved  by  an 
unimpeached  witness,  that  he  had,  in  fact,  bought  the  whisky 
from  another  person  and  paid  him  for  it. 

Bray  v.  Commerce,  5  Ga.  App.  605,  63  S.  E.  596. 

Farmer  v.  State,  18  Ga.  App.  54,  88  S.  E.  797. 

Cowart  v.  State,  14  Ga.  App.  763,  82  S.  E.  313. 

Lane  v.  Millen,  18  Ga.  App.  18,  88  S.  E.  748. 

Indeed,  it  has  been  held  that  unless  the  testimony  of  the 
corroborating  witness  be  impeached,  there  is  no  case  for  the 
jury. 

Cowart  v.  State,  14  Ga.  App.  763,  82  S.  E.  313. 


TITLE  II— SEC.  33  OF  ACT  349 

The  court  cannot  assume,  however,  merely  as  a  matter  of 
law,  that  a  witness  who  exchanged  whisky  and  money  be- 
tween the  defendant  and  the  purchaser  was  an  accomplice 
to  the  sale,  where  the  evidence  left  this  question  in  doubt. 
Fisher  v.  State,  81  Tex.  Cr.  App.  568,  197  S.  W.  189. 

5.  PRESUMPTION  FROM  TAX  RECEIPT. 

It  is  competent  for  the  state  to  make  the  possession  of  a 
license  to  sell  or  the  possession  of  a  federal  tax  receipt,  prima 
facie  evidence  that  the  liquor  is  kept  for  sale,  or  even  of  the 
unlawful  sale  itself. 

Taylor  v.  State,  14  Ga.  App.  114,  80  S.  E.  292. 

In  the  above  case  it  was  conceded  that  the  defendant,  in 
behalf  of  an  association  known  as  the  "Seminole  club/'  and 
as  its  nominal  secretary,  obtained  a  United  States  tax  re- 
ceipt, or  license,  authorizing  that  club  to  sell  intoxicating  liq- 
uor at  retail ;  and  hence  it  was  held  that  the  documentary 
evidence  upon  this  point  placed  upon  the  defendant  the  bur- 
den of  proving  that  he  did  not  in  any  wise  participate  in  any 
of  the  sales  shown  to  have  been  made  in  the  club. 
Taylor  v.  State,  14  Ga.  App  114,  80  S.  E.  292. 

6.  GENERALLY  AS  TO  ILLEGAL  ACTS. 

Burden  on  State. — In  a  .prosecution  for  the  illegal  sale 
of  intoxicants,  the  burden  is  upon  the  state  to  prove  the  sale; 
and  as  the  presumption  is  in  favor  of  innocence,  the  sale 
must  be  established  by  something  more  than  a  mere  infer- 
ence from  facts  not  necessarily  implying  guilt. 

Scoggin  v.  Morrilton,  124  Ark.  585,  187  S.  W.  445. 

In  a  prosecution  for  illegal  sale  of  liquor,  averments  in 
the  indictment  that  defendant  sold,  caused,  suffered,  and 
knowingly  permitted  liquor  to  be  sold  must  be  proven  in  or- 
der to  sustain  a  conviction. 

State  v.  Waxman  (N.  J.  Sup.),  107  Atl.  150. 

And  where  the  offense  defined  by  the  statute  is  a  sale,  the 

onus  is  upon  the  prosecution  to  prove  a  sale,  including  the 

receipt  or  promise  of  a  price  or  consideration.     In  other 

words,  the  state  must  negative  the  idea  of  a  mere  gift  or  loan. 

Flood  v.  State,  12  Ga.  App.  702,  78  S.  E.  268. 


350  TITLE  II— SEC.  33  OF  ACT 

It  must  be  shown  that  the  sale  was  after  the  passage  of 
the  statute  prohibiting  such  sales. 

Wilson  v.  State,  130  Ark.  204,  196  S.  \Y.  921. 

And  that  the  sale  occurred  prior  to  the  filing  of  the  in- 
dictment therefor. 

Wales  v.  State  (Tex.  Cr.  App.),  212  S.  W.  503. 

But  under  a  local  option  law  which  makes  prohibition  the 
rule  and  license  the  exception,  the  presumption  is  that  all 
sales  are  illegal,  and  after  the  proof  of  the  sale  in  a  given 
case,  the  burden  is  then  upon  the  accused  to  show  that  it  was 
made  under  a  license. 

State  v.  Hays,  38  S.  D.  546,  162  N.  W.  311. 
State  v.  Tygarts  Valley  Brewing  Co.,  71  W.  Va.  38,  75 
S.  E.  149. 

Evidence  Must  Connect  Accused  with  Sale  as 
Guilty  Party. — It  is  hardly  necessary  to  state  that  the  bur- 
den is  upon  the  prosecution  to  connect  the  accused  with  the 
illegal  sale  as  the  guilty  party.  The  state  must  prove  the 
illegal  sale,  the  corpus  delicti,  and  as  the  presumption  of 
innocence  is  with  the  accused,  it  must  prove  beyond  a  rea- 
sonable doubt  that  he  made  it. 

Scoggins  v.  United  States  (C.  C.  A.),  255  Fed.  825. 

Sale  in  Defendant's  Presence. — Although  it  be  shown 
by  the  evidence  on  the  trial  of  one  charged  with  the  sale  of 
intoxicating  liquor  that  a  sale  of  such  liquor  was  made  in 
the  presence  of  the  defendant,  it  is  error  to  charge  the  jury 
that/  if  such  a  sale  was  made  in  his  house  by  some  other 
person,  that  would  raise  a  presumption  that  it  was  the  de- 
fendant's business,  and  the  burden  would  be  upon  him  to 
show  that  he  had  no  connection  with  it. 

Whitley  v.  State,  14  Ga.  App.  577,  81  S.  E.  797. 

Presumption  of  Intent  from  Sale. — The  general  rule 
that  crime  involves  intention  is  applicable  to  a  law  prohibit- 
ing sales  of  liquor  to  a  minor,  intoxicated  person,  person  in 
the  habit  of  becoming  intoxicated.  Indian,  and  posted  per- 
son, by  any  person  except  a  druggist,  and  making  the  fact 
of  sale  prima  facie  evidence  of  an  intent  of  the  seller  to  vio- 
late the  law. 

People  v.  Dann,  183  Mich.  554,  149  N.  W.  1002. 


TITLE  II— SEC.  33  OF  ACT  351 

In  a  prosecution  for  illegal  sale  of  liquor,  where  there  is 
evidence  beyond  reasonable  doubt  that  accused  sold  the  liq- 
uor, an  intent  to  violate  the  law  will  be  implied. 
People  v.  Allen  (Cal.  App.),  174  Pac.  374. 
See  also,  Cooper  v.  State,  19  Ariz.  486,  172  Pac.  276. 

Where  the  liquor  sold  was  shown  to  be  Jamaica  ginger 
and  the  defendant  set  up  that  it  was  sold  by  him  in  good 
faith  as  such  the  burden  was  upon  him  to  prove  it  to  the 
satisfaction  of  the  jury. 

State  v.  Hastings,  2  Boyce's  (25  Del.)  482,  81  Atl.  403. 

Where  the  prosecution  is  for  being  in  control  or  posses- 
sion of  intoxicating  liquors,  in  violation  of  statute,  and  the 
defense  is  that  defendant  had  no  knowledge  of  the  presence 
of  the  liquor  found  in  his  possession,  it  raises  a  question  of 
fact,  and  it  will  be  reasonably  presumed  that  he  had  knowl- 
edge thereof. 

Jackson  v.  Gordon  (Miss.),  80  So.  785. 

Where  the  charge  is  the  shipment  of  liquor  into  prohibi- 
tion territory  concealed  in  barrels  of  alleged  empty  bottles, 
the  burden  is  upon  the  state  to  establish  a  guilty  intent  by 
showing  that  the  accused  knew  that  the  liquor  was  in  the 
barrels  shipped. 

State  v.  McCowen  (Mo.  App.),  189  S.  W.  618/ 

Under  the  Arkansas  statute,  Acts  1917,  p.  41,  Sec.  1,  pro- 
hibiting persons  from  transporting  liquor  for  another  or  oth- 
ers over  any  public  highway,  the  onus  is  upon  the  state  to 
show  that  the  accused  was  transporting  the  liquor  for  an- 
other and  not  for  himself,  it  was  intended  for  illegal  sale. 

Lacey  v.  State,  135  Ark.  470,  205  S.  W.  814. 

Burden  of  Proving  Legality  of  Express  Deliveries. 
—The  mere  fact  that  the  defendant  delivered  different  ship- 
ments to  different  persons  of  the  same  name  did  not  place 
on  it  the  burden  of  showing  legality  of  all  deliveries  to  con- 
signees of  that  name. 

Adams  Exp.  Co.  v.  Commonwealth,  178  Ky.  59,  198  S. 
W.  556. 


352  TITLE  II— SEC.  33  OF  ACT 

Of  Proving  Physician  Duly  Licensed. — In  a  prosecu- 
tion for  illegally  issuing  a  prescription  for  intoxicating  liq- 
uors in  the  name  of  a  licensed  physician,  the  state  had  the 
burden  of  showing  that  the  physician  was  licensed  though 
such  averment  may  have  been  unnecessary. 

McAllister  v.  State,  156  Ala.  122,  47  So.  161. 

Presumption  of  Wife's  Duress. — Where  husband  and 
wife  were  arrested  for  bringing  6  or  8  sacks  of  whisky,  con- 
taining 20  quarts  each,  into  the  state  in  an  automobile,  the 
facts  were  sufficient  to  rebut  any  presumption,  if  it  existed, 
that  the  wife  was  acting  under  the  husband's  duress. 
Morton  v.  State  (Tenn.),  209  S.  W.  644. 

In  a  prosecution  against  a  physician  for  the  unlawful  is- 
suing of  a  prescription  for  intoxicating  liquor,  the  burden 
is  upon  the  state  to  show  a  violation  of  the  statute  beyond  a 
reasonable  doubt. 

State  v.  Morton,  38  S.  D.  504,  162  N.  W.  155,  156. 

Burden  of  Proving  Former  Conviction. — In  order  to 
warrant  the  imposition  of  the  increased  penalty  imposed  for 
a  second  conviction,  it  is  necessary  that  a  former  conviction 
should  have  been  alleged  in  the  indictment  and  also  proven. 
The  court  cannot  take  judicial  knowledge  of  a  former  con- 
viction for  the  purpose  of  imposing  the  penalty  prescribed 
for  a  second  conviction. 

State  v.  Davis,  68  W.  Va.  142,  69  S.  E.  639,  Ann.  Cas. 
1912A,  996,  32  L.  R.  A.,  N.  S.,  501. 

But  where  record  evidence  of  the  former  conviction  of 
one  of  similar  name  as  defendant  is  offered,  it  is  not  neces- 
sary for  the  state  to  prove  that  the  person  named  in  such 
former  conviction,  and  the  defendant  on  trial,  is  one  and  the 
same  person. 

Files  v.  State  (Okla.  Cr.  App.),  182  Pac.  911. 

Presumption  That  Officers  Did  Their  Duty. — There  is 
a  presumption  that,  in  the  enforcement  of  the  prohibition 
law,  the  officers  charged  with  the  carrying  out  of  its  provi- 
sions have  done  their  duty. 

Thornton  v.  Skeleton  (Ga.)*,  99  S.  E.  299. 


TITLE  II— SEC.  33  OF  ACT  353 

Thus  where  officers  found  a  barrel  of  whisky  under  de- 
fendant's stable  and  two  other  barrels  buried  near  by,  under 
Acts  Ex.  Sess.  1915,  p.  88,  §  20,  it  being  their  duty  to  seize 
the  same  to  be  forfeited,  it  will  be  presumed  that  they  dis- 
charged such  duty. 

Thornton  v.  Skeleton  (Ga.),  99  S.  E.  299. 
n.  Questions  of  Law  and  Fact. 

Question  for  Court.— The  sense  in  which  the  statute 
providing  that  all  places  "used"  for  the  illegal  sale  or  keep- 
ing intoxicants  are  common  nuisances,  uses  the  quoted  word, 
is  a  question  for  the  court. 

State  v.  Gastonguay  (Me.),  105  Atl.  402. 

Question  for  Jury. — Ordinarily  the  weight  and  suffi- 
ciency of  all  evidence  tending  to  show  a  violation  of  the 
law,  or  to  rebut  the  evidence  tending  to  show  such  violation, 
is  for  the  jury.  For  example,  in  a  prosecution  for  maintain- 
ing a  nuisance  within  the  purview  of  the  liquor  laws,  whether 
or  not  the  accused  kept  intoxicating  liquor  in  his  hotel  for 
purpose  of  sale  in  violation  of  law,  or  whether  he  actually 
sold  the  same,  is  to  be  determined  by  the  jury. 
State  v.  Jarvis  (la.),  165  N.  W.  61. 

In  a  prosecution  for  violating  the  liquor  laws  the  jury  is 
not  bound  to  accept  as  true  the  testimony  of  accused  or  that 
of  the  witnesses  in  his  behalf,  but  may  consider  all  the  facts 
and  circumstances  of  the  case  and  return  a  verdict  of  guilty 
if  justified  by  such  facts  and  circumstances,  though  contrary 
to  the  direct  evidence. 

Begley  v.  Commonwealth,  176  Ky.  796,  197  S.  W.  448. 

In  a  prosecution  for  violation  of  the  law  prohibiting  the 
sale  of  intoxicating  liquors,  the  credibility  of  the  state's  wit- 
ness was  a  question  for  the  jury,  and  where  he  testified  to 
the  sale,  it  cannot  be  said  that  there  was  no  substantial  evi- 
dence to  support  the  verdict. 

Nelson  v.  State  (Ark.),  212  S.  W.  93. 

In  a  prosecution  for  violation  of  the  law  against  selling 
intoxicating  liquors,  where  defendant  was  introduced  as  a 
witness  and  denied  that  he  sold   whisky  and  contradicted 
—23 


354  TITLE  II— SEC.  33  OF  ACT 

state's  witnesses,  it  was  for  the  jury  to  determine  whether 
or  not  defendant  was  beyond  a  reasonable  doubt  guilty  of  the 
offense  charged. 

Nelson  v.  State  (Ark.),  212  S.  W.  93. 

Credibility  of  Testimony  of  Detective. — In  prosecu- 
tion  for  illegal  sale  of  liquor,  credibility  of  testimony  of 
detectives  employed  to  discover  violations  is  for  the  jury. 
Baumgartner  v.  State  (Ariz.),  178  Pac.  30. 

In   prosecution    for    maintaining   liquor   nuisance,   credi- 
bility of  police  officers  as  witnesses,  who  had  purchased  the 
whisky  and  made  the  arrest,  was  for  the  jury. 
State  v.  Shelton  (la.),  169  N.  W.  351. 

Existence  of  Guilty  Knowledge  or  Intent. — It  is  gen- 
erally held  that  the  question  of  guilty  knowledge  or  unlaw- 
ful intent — e.  g.,  whether  the  accused  knew  the  liquor  was 
on  his  premises  or  not — is  for  the  jury. 

Jackson  v.  Gordon  (Miss.),  80  So.  785. 

State  v.  Cox,  91  Ore.  518,  179  Pac.  575. 

Holt  v.  State  (Ala.  App.),  78  So.  315. 

Cooper  v.  State,  19  Ariz.  486,  172  Pac.  276. 

In  prosecution  of  pressing  shop  proprietor  for  having 
intoxicating  liquor  in  his  possession,  the  question  of  whether 
the  defendant  proprietor  was  conscious  of  the  possession 
of  the  liquor  which  had  been  found  in  his  shop  was,  under 
the  evidence,  a  question  for  the  jury. 

Jackson  v.  Gordon  (Miss.),  80  So.  785. 

Where  evidence  showed  that  defendant  kept  a  rooming 
house  in  which  there  were  a  large  number  of  rooms  let  to 
others  who  lived  in  them,  whether  liquor  procured  in  raid 
on  defendant's  place  was  in  'her  possession  was  a  jury  ques- 
tion. 

Holt  v.  State  (Ala.  App.),  78  So.  315. 

In  a  prosecution  of  a  hotel  porter  for  having  in  his 
possession,  while  transporting  to  the  hotel,  baggage  contain- 
ing whisky,  it  was  a  question  of  fact  for  the  jury  to  find  from 
the  evidence  beyond  a  reasonable  doubt  whether  the  defend- 
ant knew  or  had  reasonable  ground  to  know  or  believe  that 


TITLE  II— SEC.  33  OF  ACT  355 

the  suitcase  contained  intoxicating  liquor  when  taking  it  in- 
to his  possession.  , 

State  v.  Cox,  91  Ore.  518,  179  Pac.  575. 

ffl.  Judicial  Notice. 

Of  Intoxicating  Character  of  Certain  Liquors. — It  is 

a  matter  of  common  knowledge  which  the  court  will  notice 
judicially  that  alcohol  is  an  intoxicant  and  that  it  is  the  in- 
toxicating element  of  all  intoxicating  liquors. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

State  v.  Klein  (la.),  174  N.  W.  481. 

The  court  also  judicially  notices  the  fact  that  whisky  is 
an  intoxicating  liquor  and  that  the  word  so  implies. 
State  v.  Killeen  (N.  H.),  107  Atl.  601. 
Coats  v.  State  (Tex.  Cr.  App.),  215  S.  W.  856. 
Harwell  v.  State,  12  Ala.  App.  265,  68  So.  500. 

In  a  prosecution  for  the  unlawful  manufacturing  of  in- 
toxicating liquors,  where  defendant  admitted  that  he  made 
whisky,  further  proof  was  not  required  to  show  that  the 
whisky  was  intoxicating. 

Coats  v.  State  (Tex.  Cr.  App.),  215  S.  W.  856. 

It  is  a  matter  of  common  knowledge  to  all  well-informed 
men  that  Jamaica  ginger  is  an  "intoxicating  liquor." 
McLean  v.  People  (Colo.),  180  Pac.  676. 
State  v.  Agalos  (N.  H.),  107  Atl.  314. 
State  v.  Intoxicating  Liquors  and  Vessels  (Me.),  106 
Atl.  771. 

And  the  court  will  take  judicial  notice  that  grape  wine  is 
an  intoxicating  liquor. 

Frey  v.  Commonwealth,  169  Ky.  528,  184  S.  W.  896. 

But  the  court  cannot  take  judicial  notice  that  mead  or 
metheglin  is  an  alcoholic,  spirituous,  vinous,  malt,  or  intoxi- 
cating liquor  or  beverage,  or  that,  if  drunk  to  excess,  it  will 
produce  intoxication. 

Marks  v.  State,  159  Ala.  71,  48  So.  864,  133  Am.  St. 
Rep.  20. 


356  TITLE  II— SEC.  33  OF  ACT 

Judicial  Notice  of  Ordinance. — Where  the  prohibition 
ordinance  of  a  city,  which  defendant  is  charged  with  violat- 
ing, is  not  introduced  in  evidence,  nor  proof  with  reference 
thereto  offered,  a  judgment  of  conviction  will  be  reversed, 
and  the  cause  remanded.  Courts  do  not  take  judicial  notice 
of  ordinances  of  cities  or  towns,  and  proof  of  the  prohibi- 
tion ordinances  of  a  city  is  essential  in  prosecutions  for  the 
violation  thereof. 

Benjamin  v.  Montgomery  (Ala.  App.),  81  So.  145. 

Of  Prohibition  Territory. — The  appellate  court  will  take 
judicial  notice  that  a  certain  county  in  the  state  was  prohibi- 
tion territory  during  certain  years,  and  that  no  business  con- 
cern could  have  been  engaged  legally  in  buying  and  selling 
whisky  and  beer  therein  during  those  years. 

Gumming  v.  Funkenstein  Co.  (Ala.  App.),  81  So.  343. 

IV.  Proof  of  Time. 

Not  Ordinarily  of  Essence. — Under  an  indictment 
charging  the  illegal  sale  of  liquor,  or  the  keeping  of  liquor 
for  the  purpose  of  illegal  sale,  time  is  not  ordinarily  of  the 
essence  of  the  offense,  and  the  evidence  need  not  show  a 
sale  on  the  precise  date  laid  in  the  indictment. 

State  v.  Mostella,  159  N.  C.  459,  74  S.  E.  578. 
State  v.  Truba,  88  Vt.  557,  93  Atl.  293. 
Peebles  v.  State,  105  Miss.  834,  63  So.  271. 

Thus  where  it  was  charged  that  the  offense  was  committed 
on  Saturday,  February  7th,  evidence  that  it  was  on  a  Fri- 
day between  the  1st  and  15th  of  February  was  held  to  have 
been  properly  admitted. 

State  v.  McGuire,  139  La.  88,  71  So.  239. 

So  it  was  permissible  to  ask  a  witness  whether  he  bought 
whisky  or  beer  from  the  accused,  or  from  anyone  else  in  the 
hotel  operated  by  the  accused,  ''within  the  last  few  weeks." 

Allison  v.  State,  1  Ala.  App.  206,  55  So.  453. 

Evidence  of  receipt  of  shipment  of  whisky  by  defendant 
within  three  years  of  the  filing  of  the  indictment  for  engag- 
ing in  the  business  of  selling  liquors  in  prohibition  territory 


TITLE  II— SEC.  33  OF  ACT  357 

is  not  too  remote,  the  offense  though  laid  on  or  about  a  cer- 
tain day  covering  the  whole  of  that  period. 

Jackson  v.  State  (Tex.  Cr.  App.),  200  S.  W.  150. 

"The  offense  of  being  a  common  seller  of  intoxicating  liq- 
uors may  be  established  by  the  acts  of  the  party  done  on  a 
single  day.  (Commonwealth  v.  Gardner,  7  Gray  [Miss.] 
494,  497.)  And  where  the  offense  is  alleged  to  have  been 
committed  on  a  particular  day,  'and  continually  thereafter 
up  to  the  day  of  the  finding  of  this  indictment,'  such  alle- 
gations may  be  supported  by  proof  of  the  commission  of  the 
offense  on  the  particular  day  named,  or  during  any  part  of 
the  period  covered  by  the  continuando.  ( State  v.  Small,  80 
Me.  452,  14  Atl.  942;  Commonwealth  v.  Wood,  4  Gray 
[Mass.]  11.)" 

State  v.  Jones,  115  Me.  200,  98  Atl.  659. 

Upon  the  preliminary  examination  of  a  person  charged 
with  the  offense  of  keeping  and  maintaining  a  common  nui- 
sance, the  prosecution  is  not  restricted  in  its  proof  to  the 
date  alleged  in  the  criminal  complaint,  but  may  introduce 
evidence  tending  to  show  the  commission  of  the  offense 
charged  at  any  time  prior  to  the  date  of  such  preliminary  ex- 
amination and  within  the  period  of  limitations. 
State  v.  Webb,  36  N.  D.  235,  162  N.  W.  358. 

In  a  prosecution  for  the  sale  of  liquor  to  soldiers  in  uni- 
form, where  the  government's  evidence  showed  a  sale  on  a 
date  other  than  that  laid  in  the  indictment,  it  was  proper  to 
submit  to  the  jury  the  question  whether  a  sale  occurred  on 
the  date  testified  to  or  on  some  other  day;  the  jury  consid- 
ering the  testimony  as  to  the  date  on  question  of  the  wit- 
nesses' credibility. 

Young  v.  United  States,  162  C.  C.  A.  133,  249  Fed.  935, 
936. 

Where,  under  an  indictment  for  the  sale  of  liquor,  a  bill 
of  particulars  alleged  a  sale  on  January  20th,  testimony  of 
the  prosecuting  witness  that  he  could  not  remember  the  ex- 
act date,  but  that  it  took  place  after  January  1st,  at  which 
time  the  town  became  dry,  and  before  the  finding  of  the  in- 
dictment is  not  a  variance  from  the  bill  of  particulars. 
State  v.  Doucet,  136  La.  180,  66  So.  772. 


358  TITLE  II— SEC.  33  OF  ACT 

Specifically  Alleged  Sales. — Where  an  indictment  al- 
leges the  making  of  a  sale  to  each  of  two  named  persons 
within  three  years  next  preceding  its  filing,  a  charge  that, 
though  one  of  the  sales  alleged  is  not  proven,  defendant  may 
be  convicted  if  he  made  two  other  sales  within  said  three 
years'  period,  is  erroneous,  since  the  making  of  the  sales 
must  be  proven  as  alleged  in  the  indictment. 

Robinson  v.  State,  81  Tex.  Cr.  App.  448,  1%  S.  W.  186. 

Where  the  charge  is  the  false  labeling  of  a  shipment  as 
being  "for  medical  purposes"  the  offense  may  be  shown  to 
have  been  any  time  within  twelve  months  preceding  the  date 
laid;  but  the  state  cannot,  after  having  attempted  to  prove 
the  offense  on  a  date  different  to  that  laid  in  the  indictment, 
insist  upon  the  date  alleged  and  then  rely  upon  the  other  evi- 
dence as  showing  intent  and  guilty  knowledge. 

Commonwealth  v.   Robinson-Pettet  Co.,   181    Ky.   702, 
205  S.  W.  774. 

Sales  before  Defendant  Owned  the  Premises. — Tes- 
timony that  witness  bought  whisky  from  an  alleged  em- 
ployee of  the  accused  in  a  certain  house  in  January,  1910, 
which  was  long  before  its  occupancy  by  the  accused,  and 
long  before  the  alleged  employee  had  any  connection  with 
accused  as  his  servant,  employee  or  agent,  is  irrelevant,  there 
being  no  offer  by  further  evidence  to  connect  the  accused 
with  the  building  or  with  said  alleged  employee  in  January, 
1910. 

Hughes  v.  State,  61  Fla.  32,  55  So.  463. 

Where  Statute  Limits  Time. — Of  course  where  the 
statute  limits  the  proof  of  the  unlawful  sale  to  a  period  with- 
in twelve  months  of  the  date  specified  in  the  indictment  such 
requirement  is  controlling,  and  the  evidence  must  be  limited 
to  a  sale  or  sales  within  that  period,  though  not  to  the  exact 
date  laid  in  the  indictment. 

Harrison  v.  State,  12  Ala.  App.  284,  68  So.  532. 
Curry  v.  State,  117  Md.  587,  83  Atl.  1030. 
State  v.  Francis,  157  N.  C.  612,  72  S.  E.  1041. 

Under  an  indictment  for  having  possession  of  intoxicating 
liquors,  the  state  may  prove  such  possession  at  any  time 


TITLE  II— SEC.  33  OF  ACT  359 

prior  to  finding  of  indictment  and  subsequent  to  the  date  of 
approval  of  act,  under  which  defendant  was  indicted,  though 
when  the  act  is  two  years  old  the  possession  within  two 
years  immediately  prior  to  return  of  indictment  must  be 
proved. 

Autrey  v.  State  (Ga.  App.),  99  S.  E.  389. 

Proof  of  Sale  after  Date  Laid. — Under  a  statute  pro- 
viding that,  in  a  prosecution  for  unlawfully  selling  liquors, 
the  state  may  show  any  sale  within  two  years  before  the  day 
laid  in  the  indictment  or  affidavit,  it  is  error  to  admit  proof 
of  sale  after  that  day,  though  before  the  indictment  was  re- 
turned. 

Moses  v.  State,  100  Miss.  346,  56  So.  457. 

Where  indictments  charged  sales  of  whisky  on  October 
15th  and  on  June  23d  following,  respectively,  and  the  ex- 
tent of  a  variance  in  the  proof  as  to  the  date  alleged  in  the 
first  indictment  was  not  disclosed,  and  the  record  did  not 
show  whether  the  indictments  were  found  at  the  same  or  at 
different  terms  of  court,  accused,  complaining  of  a  convic- 
tion under  the  first  indictment,  had  the  burden  of  showing 
that  the  variance  was  prejudicial  to  him. 

State  v.  Kelly,  89  S.  C.  303,  71  S.  E.  987. 

Different  Sales  on  Same  Day. — Where  a  warrant  was 
issued  for  the  sale  of  intoxicating  liquor  on  the  morning  of 
a  certain  day,  and  before  it  was  served  accused  on  the  same 
day  made  a  second  unlawful  sale,  whereupon  the  warrant 
was  served  and  he  was  arrested,  the  accused  might  be  tried 
under  the  warrant  for  the  later  offense,  since  it  charged  a 
sale  on  that  day  and  was  notice  of  all  sales  on  that  day. 

Robinson  v.  Commonwealth,  118  Va.  785,  87  S.  E.  553. 

V.  Variance. 

Variance  as  to  Mode  of  Sale.— The  variance  between 
an  allegation  that  the  liquor  was  sold  out  of  the  pocket  of 
the  accused  and  the  proof  upon  the  trial  to  the  effect  that 
the  accused  purchased  the  liquor  from  a  towel  held  under 
her  arm,  was  immaterial,  in  a  prosecution  under  a  city  or- 


360  TITLE;  II— SEC.  33  OF  ACT 

dinance  directed  against  the  unlawful  possession  upon  the 
person  of  intoxicating  liquor  for  the  purpose  of  sale. 

Collins  v.  Milledgeville,  17  Ga.  App.  817,  88  S.  E.  716. 

Where  an  indictment  alleged  the  sale  of  one  quart  of  al- 
coholic liquor  under  a  statute  prohibiting  sale  of  any  alco- 
holic liquor,  it  was  immaterial  that  the  proof  showed  a  sale 
of  two  half-pint  bottles  of  whisky. 

Strozier  v.  State,  127  Ark.  543,  192  S.  W.  884. 

Proof  of  Either  Gift  or  Sale. — An  indictment  alleging 
that  accused  sold,  offered  for  sale,  kept  for  sale,  or  other- 
wise disposed  of  intoxicating  liquor  contrary  to  law,  can  be 
supported  by  proof  of  either  a  gift  or  a  sale  of  liquor. 
Roden  v.  State,  3  Ala.  App.  199,  58  So.  72. 

Proof  of  Sale  to  Other  than  Person  Named  in  In- 
dictment.— Where  the  indictment  charges  a  sale  to  a  cer- 
tain designated  person,  proof  of  sale  to  some  other  person 
will  not  support  a  conviction. 

McElwee  v.  State,  73  Tex.  Cr.  App.  445,  165  S.  W.  927. 

Amonett  v.  State  (Tex.  Cr.  App.),  204  S.  W.  438. 

State  v.  Julius,  29  S.  D.  638,  137  N.  W.  590. 

Thus  proof  that  S.  approached  defendant  and  asked  him 
if  he  knew  where  he  (S.)  could  get  a  quart  of  whisky,  and 
that  defendant  replied  that  he  thought  he  did,  whereupon  S. 
gave  defendant  $1.50,  and  told  him  to  deliver  the  whisky  to 
S.'s  son,  which  he  subsequently  did,  showed  a  sale  of  whisky 
to  S.,  and  was  therefore  insufficient  to  support  an  indictment 
charging  a  sale  to  the  son. 

McElwee  v.  State,  73  Tex.  Cr.  App.  445,  165  S.  W.  927. 

And  under  an  information  charging  an  illegal  sale  of  in- 
toxicating liquors  to  several  persons  jointly,  defendant  can 
not  be  convicted  of  an  illegal  sale  to  one  only  of  the  persons 
named. 

State  v.  Julius,  29  S.  D.  638,  137  N.  W.  590. 

But  it  has  been  held  that  where  a  count  of  an  information 
charged  a  sale  of  intoxicating  liquors  to  three  persons 
named  therein,  and  the  proof  established  a  sale  to  one  of 


TITLE  II— SEC.  33  OF  ACT  361 

such  persons,  there  was  no  fatal  variance;  since  the  essen- 
tial element  of  the  offense  was  the  sale. 

Ray  v.  State  (Del.),  100  Atl.  472. 

And  in  a  prosecution  for  pursuing  the  business  of  selling 
intoxicating  liquors,  proof  of  a  sale  to  a  purchaser  not  named 
in  the  indictment,  while  not  sufficient  to  support  a  conviction, 
was  admissible  as  tending  to  show  that  defendant  was  pur- 
suing such  business. 

Amonett  v.  State  (Tex.  Cr.  App.),  204  S.  W.  438. 

Evidence  That  Portion  of  Money  Furnished  by  a 
Third  Person. — While  it  is  true  that  where  the  sale  of  in- 
toxicating liquor  is  alleged  to  have  been  made  to  an  in- 
dividual, the  proof  must  correspond  in  this  respect  with  the 
allegation,  nevertheless  evidence  that  another  person  fur- 
nished part  of  the  money  with  which  the  liquor  was  paid  for, 
did  not  create  any  variance  between  the  allegation  and  the 
proof  for  the  reason  that  the  jury  were  authorized  to  infer 
that  if  any  money  was  furnished  by  a  person  other  than  the 
alleged  buyer,  it  might  have  been  a  loan  of  money,  and  for 
the  further  reason  that  there  was  no  evidence  tending  to 
show  that  the  seller  had  any  knowledge  of  the  participation 
of  any  other  person  than  the  participant  in  the  actual  pur- 
chase. 

\Yilburn  v.  State,  8  Ga.  App.  28,  68  S.  E.  460. 

Variance  as  to  Person  to  Whom  Liquor  Illegally 
Transported  Was  Delivered. — In  a  prosecution  for  trans- 
porting liquor  into  the  state  and  delivering  it  to  another, 
proof  to  show  that  the  liquor  was  transported  by  one  de- 
fendant into  the  state  for  delivery  to  another  defendant,  and 
was  delivered  to  him  for  such  purposes,  was  a  variance  from 
the  allegations  of  the  indictment  charging  a  delivery  to  some 
person  other  than  the  three  persons  named  in  the  indictment. 

Winfrey  v.  State,  133  Ark.  357,  202  S.  W.  23. 

Under  such  statutes  the  evidence  as  to  the  quantity  de- 
livered and  the  consignee  must  correspond  to  the  indictment. 

Adams  Exp.  Co.  v.  Commonwealth,  178  Ky.  59,  198  S. 
W.  556. 


362  TITLE  II— SEC.  33  OF  ACT 

Variance  as  to  Person  for  Whom  Liquor  Illegally 
Kept. — Under  a  complaint  charging  keeping  intoxicating 
liquors  for  persons  specifically  named,  defendant  could  not 
be  convicted  of  keeping  liquor  for  his  son  who  was  not 
named. 

State  v.  McCowen  (Mo.  App.),  189  S.  W.  618. 

Proof  of  Place  of  Sale. — Where  an  indictment  alleged 
the  sale  of  liquor  between  certain  buildings  in  a  town,  though 
the  allegation  was  needlessly  specific,  the  evidence  of  the  of- 
fense should  be  confined  to  the  limits  alleged  in  the  indict- 
ment. 

Ragan  v.  State,  9  Ga.  App.  871,  72  S.  E.  441. 

Variance  between  indictment  for  transporting  liquor  into 
a  prohibition  state,  charging  transportation  to  a  certain  point 
therein,  and  proof  that  defendant's  journey  ended  two  or 
three  miles  short  of  that  point,  he  being  arrested  in  his 
journey,  was  immaterial. 

Bishops.  United  States  (C.  C.  A.),  259  Fed.  195. 

Proof  of  Different  Sale  or  Other  Offense.— Where  a 
statute  creates  and  provides  the  punishment  for  the  two  sev- 
eral offenses  of  transporting  liquor  illegally  and  of  having 
them  in  separate  containers,  a  conviction  cannot  be  had  un- 
der a  charge  of  the  first  offense  on  proof  of  the  second. 

State  v.  Little,  171  N.  C.  805,  88  S.  E.  723. 

Under  an  indictment  charging  an  unlawful  sale  of  intoxi- 
cants, accused  cannot  be  convicted  of  the  offense  of  procur- 
ing liquor  for  another. 

Woods  v.  State,  114  Ark.  391.  170  S.  W.  79. 

One  charged  with  unlawfully  selling  intoxicating  liquors 
to  a  person  named  cannot  be  convicted  of  violating  Revisal 
1908,  §  3534,  punishing  unlawful  sales  through  agents,  or  of 
violating  section  3527a,  punishing  soliciting  of  orders  for  in- 
toxicating liquors,  or  under  the  federal  Penal  Code  (Act 
March  4,  1909,  c.  321.  35  Stat.  1088  [U.  S.  Comp.  St.  Supp. 
1911,  p.  1588]). 

State  v.  Cardwell,  166  N.  C.  309,  81  S.  E.  628. 


TITLE  II— SEC.  33  OF  ACT  363 

But  notwithstanding  charge  is  for  manufacture  of  spirit- 
uous liquors,  a  conviction  for  aiding  and  abetting  can  be  had. 
State  v.  Ogleston  (N.  C.),  98  S.  E.  537. 

Nor  is  the  state  limited  to  the  proof  of  only  one  sale  under 
an  indictment  in  three  counts,  each  charging  a  sale  of  the 
prohibited  liquor. 

Harwell  v.  State,  11  Ala.  App.  188,  65  So.  702. 

And  where  the  prosecution  is  for  taking  orders  for  the 
sale  of  intoxicants  in  nonlicence  territory,  the  state  need  not 
limit  its  proof  to  any  particular  order,  but  may  show  any 
and  all  orders  taken  within  a  year  prior  to  the  date  of  the 
prosecution. 

Sanders  v.  State,  115  Ark.  376,  171  S.  W.  142. 

Variance  in  Proof  of  Character  or  Description  of  Liquors. 

"Spirituous  Liquors."— Proof  that  accused  made  a  sale 
of  spirituous  liquors  does  not  constitute  a  variance  from  the 
affidavit  charging  a  sale  of  spirituous,  vinous,  and  malt  liq- 
uors. 

Rash  v.  State,  13  Ala.  App.  262,  69  So.  239. 

"Liquor" — "Whisky." — In  a  prosecution  for  illegal  sale 
of  whisky,  a  way  bill  showing  a  shipment  of  liquor  to  de- 
fendant is  immaterial,  where  it  cannot  be  shown  to  be 
whisky. 

State  v.  Ryan,  1  Boyce's  (24  Del.)  23,  75  Atl.  869. 

"Bourbon" — "Rye."— Where  the  owner  of  pool  hall 
was  accused  of  selling  Bourbon  whisky  illegally,  the  fact 
that  a  keg  of  rye  whisky  was  found  in  the  basement  of  his 
pool  hall  was  admissible  in  evidence  and  proper  for  consid- 
eration of  the  jury. 

Baumgartner  v.  State  (Ariz.),  178  Pac.  30. 

"Corn  Liquor." — Evidence  that  prosecuting  witness  pur- 
chased corn  liquor  from  accused  was  sufficient  to  sustain  a 
conviction  under  an  indictment  charging  the  unlawful  sale 
of  whisky,  brandy,  gin,  beer,  malt  liquors,  and  mixtures 
thereof. 

Mullins  v.  Commonwealth,  115  Va.  945,  79  S.  E.  324. 


364  TITLE  II— SEC.  33  OF  ACT 

"Alcohol"— "Ethyl  Alcohol."— In  a  prosecution  for  the 
illegal  sale  of  intoxicating  liquors,  designated  in  the  indict- 
ment as  "ethyl  alcohol,"  as  "alcohol"  and  "ethyl  alcohol"  are 
practically  synonymous,  there  is  no  merit  in  the  contention 
that  in  disclosing  merely  a  sale  of  alcohol  there  was  a  fail- 
ure of  proof,  and  that  the  court  erred  in  instructing  the 
jury  that  "ethyl  alcohol"  is,  as  a  matter  of  law,  intoxicat- 
ing liquor. 

State  v.  Newlin  (Ore.),  165  Pac.  225. 

"Whisky" — "Gin." — "There  was  evidence  from  which 
the  jury  could  infer  that  the  intoxicating  liquor  sold  was 
'whisky,'  as  charged  in  the  accusation,  and  not  'gin,'  as  con- 
tended by  the  plaintiff  in  error.  The  testimony  of  various 
witnesses  for  the  state  referred  to  the  liquor  sold  as  'whisky/ 
and  one  witness  said,  'it  was  gin  whisky ;'  and,  notwithstand- 
ing other  testimony  to  the  effect  that  the  liquor  was  gin,  there 
was  no  such  variance  between  the  proof  submitted  and  the 
allegations  in  the  accusation  as  to  require  the  grant  of  a 
new  trial." 

Anderson  v.  State,  20  Ga.  App.  747,  93  S.  E.  237. 

"Intoxicating  Liquor" — "Beer." — In  a  prosecution 
for  keeping  intoxicating  liquor  with  intent  to  sell,  there 
was  evidence  that  when  the  respondent's  premises  were 
searched  large  quantities  of  beer,  whisky,  and  porter  were 
found.  The  respondent  objected  to  the  evidence  as  to  the 
beer,  claiming  the  word  used  alone  should  not  be  understood 
as  an  intoxicating  liquor.  But  whether  or  not  beer  was  an 
intoxicating  liquor,  the  evidence  was  proper,  as  evidence  of 
finding  a  large  quantity  of  beer,  alone  with  whisky  and 
porter,  had  a  tendency  to  show  the  respondent's  intention  to 
sell  these  liquors,  and  that  they  were  not  kept  for  his  own. 
State  v.  Barr,  84  Vt.  38,  77  Atl.  914,  48  L.  R.  A.,  N.  S., 
302  N. 

"Bevo"  and  "Temperance  Malt." — Proof  of  sale  of 
"Bevo"  and  "Temperance  Malt,"  if  proven  to  be  drinks  of 
like  nature  to  spirituous  liquors,  wines,  porter,  ale  and  beer, 
and  to  be  intoxicating  in  the  common  acceptation  of  that 
word,  may  be  given  in  evidence  under  an  indictment  charg- 
ing defendant  in  the  language  of  the  statute,  with  the  un- 


TITLE  II— SEC.  33  OF  ACT  365 

lawful  sale,  offer  and  exposure  for  sale  of  spirituous  liquors, 
wines,  porter,  ale  and  beer,  and  drinks  of  like  nature ;  and  a 
count  charging  such  drinks  to  be  intoxicating  is  unnecessary. 

State  v.  Henry,  74  W.  Va.  72,  81  S.  E.  569. 

Self -Serving  Declarations. 

Inquiry  by  Defendant  as  to  Obtaining  Liquor. — An 

inquiry  made  by  defendant  of  a  third  person  as  to  whether 
he  knew  where  liquor  could  be  had  is  a  self-serving  declara- 
tion and  is  incompetent  on  the  part  of  the  defendant  in  a 
prosecution  for  sale  of  intoxicating  liquor. 

Dean  v.  State,  130  Ark.  322,  197  S.  W.  684. 

Refusal  to  Sell  to  Other  Persons. — In  a  prosecution 
for  the  sale  of  intoxicating  liquors  without  a  license  evidence 
that  accused  had  refused  to  sell  liquor  to  a  particular  in- 
dividual is  not  admissible. 

State  v.  Zagone,  135  La.  550,  65  So.  737. 

State  v.  Fountain  (la.),  168  N.  W.  285. 

Thus  where  the  defendant  offered  to  show  by  a  witness 
that  on  the  same  day  he  was  charged  with  selling  whisky  to 
the  state's  witness  he  declined  to  sell  a  bottle  to  him,  there 
was  no  error  in  rejecting  this  testimony.  It  was  not  in  con- 
flict with  the  evidence  for  the  state.  Proof  of  a  sale  of 
whisky  to  one  person  is  not  rebutted  by  proof  of  refusal  to 
sell  to  another.  There  might  be  many  reasons  why  the  de- 
fendant refused  to  sell  to  one,  while  selling  to  another. 

Donaldson  v.  State,  3  Ga.  App.  451,  60  S.  E.  115. 

Sale  by  Defendant's  Firm,  Partner,  Agent,  Em- 
ployee, etc. — In  support  of  an  indictment  charging  an  ac- 
cused with  having  illegally  sold  intoxicating  liquors,  it  was 
competent  for  the  state  to  show  that  the  sale  was  made  by 
a  commercial  firm  of  which  the  accused  was  a  member  and 
with  his  consent. 

State  v.  Rollings  worth,  134  La.  554,  64  So.  409. 

Such  a  sale,  whether  made  by  the  principal,  or  by  his 
clerk,  is  all  that  is  necessary  to  be  proved  to  make  out  the 
offense,  provided  the  sale  made  by  the  clerk  is  made  in  the 


366  TITLE  II— SEC.  33  OF  ACT 

conduct  of  the  business  with  which  he  is  charged  by  the  prin- 
cipal. 

O'Donnell  v.  Commonwealth,  108  Va.  882,  62  S.  E.  373. 

Where  in  a  prosecution  for  wrongful  sale  of  intoxicating 
liquors  without  a  license,  the  state  showed  that  defendant 
was  proprietor  of  a  restaurant,  the  back  of  which  was  cur- 
tained off  to  form  a  private  room  and  opened  into  another 
room,  where  quantities  of  intoxicating  liquors,  beer,  and 
whisky  were  kept  on  ice  ready  to  serve,  evidence  of  sales 
made  to  customers  in  such  back  room  by  a  negro,  though  not 
in  defendant's  presence,  was  admissible  against  him. 

Carson  v.  State,  3  Ala.  App.  206,  58  So.  88. 

But  it  was  error  for  the  court  to  permit  a  witness,  over 
proper  objection,  to  testify  that  he  bought  whisky  from  a 
person  other  than  the  defendant,  that  lived  on  the  same 
premises  with  the  defendant,  when  the  witness  testified  that 
he  had  never  bought  any  whisky  from  the  defendant,  and 
that  the  defendant  was  not  present  and  had  no  connection 
with  the  sale. 

Holmes  v.  State,  12  Ga.  App.  359,  77  S.  E.  187. 
Windom  v.  State,  19  Ga.  App.  452,  91  S.  E.  911. 

And  it  was  also  error  on  trial  of  a  defendant  for  selling  liq- 
uor to  a  member  of  the  military  forces  in  uniform,  to  exclude 
testimony  of  defendant,  who  did  not  personally  take  the  or- 
der, that  he  was  told  by  the  person  who  took  the  order  that 
the  liquor  was  ordered  by,  and  was  for,  a  woman,  to  whom 
he  charged  it. 

Fetters  v.  United  States  (C.  C.  A.),  260  Fed.  142. 

Acts  of  Confederates,  Co- Conspirators,  etc. — In  pros- 
ecution for  violation  of  the  prohibition  laws,  after  evidence 
had  been  introduced  tending  to  show  that  defendant  and  an- 
other were  confederates,  illegally  operating  a  still,  testimony 
by  a  witness  that  defendant's  confederate  went  with  him  to 
get  a  jug  of  whisky  near  the  still  is  admissible  as  independ- 
ent evidence,  not  in  the  nature  of  a  confession,  tending  to 
prove  the  corpus  delicti. 

Walker  v.  State  (Ala.  App.),  81  So.  179. 


TITLE  II— SEC.  33  OF  ACT  367 

No  Profit  as  Evidence  of  No  Sale.— In  a  prosecution 
for  selling  intoxicating  liquors  in  prohibition  territory,  it  is 
no  defense  that  the  seller  made  no  money,  or  that  the  liquor 
did  not  belong  to  him ;  therefore  evidence  as  to  whether  de- 
fendant got  anything  out  of  the  sale  was  properly  excluded. 
Bird  v.  State  (Tex.  Cr.  App.),  206  S.  W.  844. 

To  Show  Character  of  Sale,  as  Interstate,  etc.— 

Where  the  defendant  claimed  that  he  acted  only  as  agent  for 
a  foreign  firm,  and  that  the  sale  was  an  interstate  transac- 
tion, evidence  that  defendant  collected  empty  beer  cases,  con- 
taining beer  when  delivered,  on  orders  taken  by  him,  was 
relevant  to  show  defendant's  method  of  business. 
State  v.  Gross,  76  N.  H.  304,  82  Atl.  533. 

Evidence  to  Show  Time  and  Place.— On  a  trial  for 
selling  whisky  in  prohibition  territory,  the  time  and  place 
where  the  prosecuting  witness  claimed  to  have  bought  the 
whisky  from  accused  were  directly  in  issue  and  properly 
shown. 

Engman  v.  State,  77  Tex.  Cr.  App.  595,  179  S.  W.  569. 

And  where  a  witness  testified  to  a  purchase  of  whisky 
from  accused  at  a  day  subsequent  to  the  indictment,  a  ques- 
tion asked  him,  whether  he  remembered  being  before  the 
grand  jury  and  whether  he  did  not  buy  the  whisky  before 
that  time  and  before  the  indictment  was  found,  was  neither 
incompetent,  immaterial,  nor  irrelevant. 

Shaneyfelt  v.  State,  8  Ala.  App.  370,  62  So.  331. 

Where  the  state's  witness  did  not  definitely  locate  the 
date  of  the  alleged  sale,  and  testified  that  he  only  obtained 
whisky  from  defendant  once,  the  court  should  have  per- 
mitted defendant  to  introduce  witnesses  to  substantiate  his 
own  testimony  that  the  sale  occurred  in  another  county. 
Mosley  v.  State,  107  Miss.  158,  65  So.  124. 

Witness  Receiving  Money  to  Buy  Liquor  and  Re- 
turning with  Liquor. — In  a  prosecution  for  violating  the 
prohibition  law,  testimony  of  a  police  officer  that  he  gave  a 
person  $1  to  see  if  he  could  buy  some  whisky,  and  that  he 
went  and  returned  with  a  bottle  of  whisky  and  another 


368  TITLE  II— SEC.  33  OF  ACT 

bottle  half  full,  was  admissible  in  connection  with  testimony 
of  the  person  referred  to  as  to  having  delivered  the  whisky. 
Grusin  v.  State,  10  Ga.  App.  149,  75  S.  E.  350. 

Witness  May  Testify  Where  He  Got  Liquor. — Where 
defendant  was  accused  of  furnishing  witness  liquor  to  be 
sold  for  their  mutual  benefit,  it  was  proper  to  ask  witness 
where  he  got  the  liquor;  such  testimony  being  relevant  and 
material  under  the  charge. 

Quinn  v.  State,  15  Ala.  App.  635,  74  So.  743. 

VI.  Admissibility,  Relevancy  and  Competency. 
1.  RELEVANCY  MUST  APPEAR. 

Perhaps  in  no  other  class  of  cases  is  so  much  rambling, 
disconnected,  irrelevant  testimony  sought  to  be  introduced 
as  in  prosecutions  under  prohibitory  laws.  From  a  study 
of  the  cases  it  would  seem  that  lawyers  generally  are  un- 
der the  impression  that  some  peculiar  rule  as  to  relevancy 
and  competency  obtains  in  prosecutions  of  this  character. 
It  is  hardly  necessary  to  state  that  in  the  absence  of  statute 
creating  some  peculiar  or  different  rule,  the  principles  re- 
lating to  relevancy  and  competency  are  the  same  in  this 
class  of  cases  as  elsewhere. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652. 

State  v.  Walters,  178  la.  1108,  160  N.  W.  821,  822. 

Henley  v.  State,  3  Ala.  App.  215,  58  So.  96. 

Bird  v.  State  (Tex.  Cr.  App.),  206  S.  W.  844. 

Sapp  v.  State,  2  Ala.  App.  190,  56  So.  45. 

Loudermilk  v.  State,  4  Ala.  App.  167,  58  So.  180. 

In  a  prosecution  for  violation  of  the  prohibition  law, 
where  two  witnesses  had  testified  to  buying  liquor  from  a 
third  person,  testimony  of  such  third  person  that  the  wit- 
nesses had  broken  into  his  house  and  stolen  the  liquor  was 
properly  excluded  as  irrelevant. 

Pine  v.  Commonwealth,  121  Va.  812,  93  S.  E.  652,  653. 

In  a  prosecution  for  unlawfully  selling  liquor,  where  the 
prosecuting  witness  testified  that  he  drank  no  beer  in  the 
house  of  defendant,  that  he  took  it  away,  and  that  neither 
he  nor  his  daughter  drank  it,  the  exclusion  of  evidence  as 


TITLE  II— SEC.  33  OP  ACT  369 

to  who  did  drink  the  beer,  on  the  ground  that  it  was  irrele- 
vant and  immaterial,  was  not  error. 

State  v.  Walters,  178  la.  1108,  160  N.  W.  821,  822. 

In  a  prosecution  for  violation  of  the  law  prohibiting  the 
sale  of  intoxicating  liquors  in  prohibition  territory,  evi- 
dence as  to  the  number  of  defendant's  family  held  immate- 
rial. 

Bird  v.  State  (Tex.  Cr.  App.),  206  S.  W.  844. 

A  grocer  on  trial  for  maintaining  a  liquor  nuisance  is 
not  entitled  to  show  the  amount  of  his  weekly  sales  in  the 
grocery  business.  Such  evidence  has  no  probative  force  in 
support  of  his  innocence. 

State  v.  Fortin,  106  Me.  382,  76  Atl.  896,  21  Ann.  Cas. 
454. 

In  a  trial  for  violating  the  prohibition  laws,  accused  was 
not  entitled  to  show  on  cross-examination  of  two  of  the 
state's  witnesses  that  a  man  could  drink  a  dozen  and  a  half 
or  two  dozen  bottles  of  beer  in  a  day,  in  explanation  of  the 
quantity  of  beer  found  in  accused's  room ;  he  having  given 
uncontradicted  testimony  as  to  how  much  he  could  drink. 

Loudermilk  v.  State,  4  Ala.  App.  167,  58  So.  180. 

In  a  prosecution  for  a  violation  of  the  prohibition  law, 
permitting  a  state's  witness  to  answer,  over  objection, 
whether  he  know  of  any  whisky  being  carried  between  two 
towns  prior  to  a  certain  date,  was  prejudicially  erroneous, 
where  it  was  not  shown  that  the  whisky  alleged  to  have 
been  sold  by  plaintiff  was  any  part  of  that  which  was  the 
subject  of  the  inquiry  or  that  the  defendant  had  a  knowl- 
edge of  or  agency  in  its  carriage. 

Henley  v.  State,  3  Ala.  App.  215,  58  So.  96. 

In  a  trial  for  violating  the  prohibitory  law,  evidence  as  to 
how  many  other  warrants  were  issued  as  a  result  of  a  visit 
by  the  state's  witness  to  a  certain  place  on  a  particular  oc- 
casion and  at  how  many  other  places  he  purchased  whisky, 
was  properly  excluded. 

Sapp  v.  State,  2  Ala.  App.  190,  56  So.  45. 

—24 


370  TITLE  II— SEC.  33  OF  ACT 

Second  Conviction. — In  trial  for  second  violation  of 
the  prohibitory  liquor  law,  it  is  error  to  admit  proof  of  a 
prior  conviction  when  judgment  of  such  conviction  has  been 
appealed  and  execution  of  such  judgment  has  been  legally 
suspended  and  appeal  is  undetermined. 

McAlester  v.  State  (Okla.  Cr.  App.),  180  Pac.  718. 

In  trial  for  second  violation  of  prohibitory  liquor  law, 
where  the  only  evidence  of  the  former  violation  charged 
was  a  conviction  from  which  an  appeal  was  taken,  the  judg- 
ment and  conviction  suspended,  and  the  appeal  undeter- 
mined, it  was  insufficient  to  sustain  a  conviction. 

McAlester  v.  State  (Okla.  Cr.  App.),  180  Pac.  718. 

In  prosecution  for  second  violation  of  prohibitory  liquor 
laws,  where  record  evidence  of  former  conviction  of  one  of 
similar  name  as  defendant  is  offered,  it  is  not  necessary  for 
state  to  prove  that  person  named  in  such  former  conviction, 
and  defendant  on  trial  is  one  and  the  same  person. 
Files  v.  State  (Okla.  Cr.  App.),  182  Pac.  911. 

2.  STATUTORY  REGULATION. 

The  provision  of  the  Fuller  Act  (Act  Sp.  Sess.  1909,  p. 
90,  §  29^2  regulating  the  admissibility  of  evidence  under  an 
indictment  for  violation  of  the  prohibition  law,  was  not  af- 
fected by  subsequent  legislation  regulating  the  liquor  traffic. 
Spigener  v.  State,  11  Ala.  App.  296,  66  So.  896. 

3i  OFFENSES  CHARGED  IN  ALTERNATIVE. 

Where  one  count  in  an  indictment  charges  the  defendant 
with  selling  intoxicating  liquor  to  a  person  named  and  an- 
other count  charges  him  with  keeping  such  liquor  on  hand  at 
his  place  of  business,  evidence  tending  to  establish  his  guilt 
under  one  count  may  be  considered  by  the  jury,  though  en- 
tirely irrelevant  to  the  other  count. 

Reddick  v.  State,  15  Ga.  App.  437,  83  S.  E.  675. 

And  where  the  indictment  charges  in  one  count  a  sale  and 
in  another  that  the  accused  sold,  offered  for  sale,  or  other- 
wise disposed  of  intoxicants,  evidence  of  both  offenses  was 
admissible. 

Thames  v.  State,  10  Ala.  App.  210,  64  So.  648. 


TITLE  II— SEC.  33  OF  ACT  371 

In  prosecution  for  violation  of  prohibition  law,  where 
the  affidavit  charged  that  defendant  ''sold,  offered  for  sale, 
kept  for  sale,  or  otherwise  disposed  of  spirituous,  vinous,  or 
malt  liquors,"  and  the  state  had  proved  sale  was  made,  it  was 
not  error  to  permit  evidence  of  defendant's  possession  of 
whisky  at  a  different  time  and  place,  the  sale  and  possession 
being  charged  in  the  alternative,  though  the  state  could  be 
compelled  to  elect  upon  which  charge  it  would  rely. 

Howze  v.  State  (Ala.  App.),  75  So.  624. 

4.  RES  GESTAE. 

In  cases  of  this  character  proof  of  defendant's  having 
prohibited  liquor,  ordering  it,  and  all  similar  facts  and 
acts  at  or  about  the  time  of  the  transaction  in  question,  are 
admissible  in  evidence  for  the  purpose  of  throwing  light  on 
the  transaction  and  to  show  the  identity  of  the  defendant  as 
the  guilty  party,  and  to  connect  him  with  the  commission  of 
the  offense. 

Mclntosh  v.  State,  140  Ala.  137,  37  So.  223. 
Untreinor  v.  State,  146  Ala.  133,  41  So.  170. 
Guarreno  v.  State,  148  Ala.  637,  42  So.  833. 
Scott  v.  State,  150  Ala.  59,  43  So.  181. 
Sadler  v.  State,  165  Ala.  109,  51  So.  564. 
Smith  v.  State,  2  Ala.  App.  216,  56  So.  39. 

Where,  in  a  prosecution  for  selling  fermented  cider  in 
violation  of  the  local  option  law.  defendant  denied  that  the 
cider  was  fermented  and  claimed  that  its  intoxicating  qual- 
ities were  due  to  whisky  being  mixed  with  it  subsequent  to 
the  sale,  evidence  that  the  parties  who  bought  the  cider  had 
whisky  in  their  possession  was  admissible  as  part  of  the  res 
gestce  in  support  of  defendant's  claim. 

People  v.  Emmons,  178  Mich.  126,  144  N.  W.  479,  Ann. 
Cas.  191 5D,  425. 

\Yhere  the  witness  went  twice  to  defendant  before  getting 
the  liquor,  a  statement  of  defendant  the  first  time  that  the 
whisky  would  be  $1.25  a  pint  was  admissible  as  part  of  the 
res  gesta-. 

Berry  v.  State  (Tex.  Cr.  App.),  203  S.  \Y.  901. 


372  TITLE  II— SEC.  33  OF  ACT 

5.  CIRCUMSTANTIAL  EVIDENCE. 

Circumstantial  evidence  is  admissible  to  prove  offenses 
against  the  liquor  laws  as  in  other  cases,  and  the  connection 
of  the  accused  with  an  illegal  sale  of  intoxicants  may  be  es- 
tablished by  circumstances  as  well  as  by  direct  proof. 

Gales  v.  State,  14  Ga.  App.  450,  81  S.  E.  364. 

Kerney  v.  State,  21  Ga.  App.  500,  94  S.  E.  625. 

Thus  where  there  was  direct  evidence  of  a  sale  of  intoxi- 
cating liquors,  which  would  have  authorized  the  conviction 
of  the  accused,  it  was  not  error  to  admit  proof  of  circum- 
stances which  apparently  indicated  that  the  sale  of  intoxicat- 
ing liquors  was  being  conducted  in  a  house  under  the  control 
of  the  defendant  and  occupied  by  him  as  a  residence,  al- 
though there  was  no  direct  evidence  of  his  presence  at  the 
house  at  the  time  that  unusual  quantities  of  liquor  were  be- 
ing taken  therefrom. 

Gales  v.  State,  14  Ga.  App.  450,  81  S.  E.  364. 

The  court  did  not  err  in  admitting  in  evidence  a  certain 

envelope  the  defendant  had  given  to  the  witness,  bearing  the 

address  of  the  concern  from  which  the  whisky  was  shown 

to  have  been  ordered  by  the  defendant  in  the  witness"  name. 

Kerney  v.  State,  21  Ga.  App.  500,  94  S.  E.  625. 

Neither  did  the  court  err  in  admitting  in  evidence  a  piece 
of  pasteboard,  torn  from  a  carton  found  in  the  defendant's 
residence,  by  a  witness,  bearing  the  name  of  the  person  in 
whose  name  the  defendant  was  charged  with  having  ordered 
the  whisky. 

Kerney  v.  State,  21  Ga.  App.  500,  94  S.  E.  625. 

Testimony  as  to  the  existence  of  a  push  button  in  a  store, 
to  which  was  attached  a  wire  leading  to  the  room  of  the  de- 
fendant in  the  same  building,  was  relevant,  in  view  of  testi- 
mony that  people  were  seen  "going  in  and  out  of  that  store 
appearing  to  be  drinking,"  as  tending  to  sustain  the  theory 
that  considerable  quantities  of  intoxicating  liquors  were 
stored  in  this  building  in  the  room  of  the  defendant  and  that 
she  was  the  custodian  thereof,  and  therefore  of  the  particular 
intoxicants  found  in  her  room. 

Littleton  v.  State,  20  Ga.  App.  746.  93  S.  E.  230. 


TITLE  II— SEC.  33  OF  ACT  373 

6.  CONFESSIONS  AND  ADMISSIONS. 

Permitting  a  witness  in  a  prosecution  for  a  violation  of 
the  prohibition  law  to  testify  as  to  a  confession  of  the  de- 
fendant was  proper,  after  the  court  had  determined  that  its 
predicate  was  proper. 

Henley  v.  State,  3  Ala.  App.  215,  58  So.  96. 

If  a  defendant  accused  of  violating  the  prohibition  laws 
by  selling  liquor  to  a  certain  person  stands  mute  while  the 
charge  is  being  made  in  his  presence  and  hearing  that  "he 
sold  the  whisky"  to  that  person,  it  is  an  inculpatory  admis- 
sion in  the  nature  of  a  confession  directly  relating  to  the  facts 
and  circumstances  of  the  crime  and  was  therefore  prima 
facie  involuntary  and  inadmissible. 

Braxton  v.  State  (Ala.  App.),  82  So.  657. 

A  note  found  on  top  of  4^  cases  of  beer  found  in  defend- 
ant's room,  reading  as  follows:  "Frank:  Please  put  this 
beer  in  the  lounge  and  make  Elvira  burn  the  boxes  and  go 
to  sleep  and  don't  talk.  B." — is  not  admissible  in  evidence 
where  it  is  not  shown  that  it  was  written  by  the  defendant 
or  at  his  instance,  or  that  he  had  anything  to  do  with  the 
placing  of  the  note  there,  other  than  evidence  to  the  effect 
that  he  had  stolen  the  beer. 

Edmunds  v.  State* (Ala.  App.),  81  So.  847. 

Communications  between  Husband  and  Wife. — In  a 
prosecution  for  unlawfully  selling  liquor,  evidence  of  an  of- 
ficer that  at  the  time  of  defendant's  arrest  at  his  home,  his 
wife  stated  in  his  presence  that  she  had  tried  to  keep  him  up 
and  he  had  continued  bootlegging,  and  she  was  through,  was 
not  inadmissible  on  the  ground  that  a  wife  may  not  testify 
against  her  husband  since  the  rule  of  privilege  does  not  cover 
conversation  between  husband  and  wife  being  testified  to  by 
a  third  person  who  overhears  them. 

State  v.  Randall,  170  N.  C.  757,  87  S.  E.  227,  Ann.  Cas. 
1918A,  438. 

7.  INCRIMINATING  QUESTIONS — PRIVILEGE. 

In  a  prosecution  for  unlawfully  selling  intoxicating  liquors, 
an  order  of  immunity  entered  by  the  circuit  court  against 


374  TITLE  II— SEC.  33  OF  ACT 

prosecution  on  account  of  any  testimony  given  before  the 
grand  jury  in  a  separate  investigation  as  to  bribery  of  the 
state's  attorney  did  not  protect  defendant,  notwithstanding 
the  offenses  for  which  he  was  being  prosecuted  were  those 
the  state's  attorney  had  been  bribed  not  to  prosecute  and  of 
which  evidence  had  been  given  at  the  bribery  investigation. 

People  v.  Goldberg,  287  111.  238,  122  N.  E.  530. 

See  also,  under  this  same  statute,  People  v.  Argo,  237 
111.  173,  86  N.  E.  679. 

A  witness,  in  a  prosecution  for  having  in  possession  in- 
toxicating liquors,  who  made  no  claim  of  privilege  upon  the 
ground  that  his  testimony  might  incriminate  him  or  upon 
any  other  ground,  was  not  "compelled"  to  testify  within  the 
meaning  of  Laws  1915,  p.  9,  §  13,  providing  that  no  person 
shall  be  prosecuted  or  punished  on  account  of  any  transac- 
tion or  matter  or  thing  concerning  which  he  shall  be  com- 
pelled to  testify  in  such  a  prosecution. 

State  v.  Whalen  (Wash.),  183  Pac.  130. 

Where  a  witness,  in  a  prosecution  for  being  in  unlawful 
possession  of  intoxicating  liquors,  made  no  claim  of  privi- 
lege upon  the  ground  that  his  testimony  might  incriminate 
him,  sureties  on  his  bail  bond,  he  having  been  arrested  by 
reason  of  having  given  testimony  that  incriminated  him,  can- 
not claim  the  privilege  for  him  in  a  proceeding  to  forfeit 
bail,  although  Laws  1915,  p.  9,  §  13,  provide  that  no  person 
shall  be  prosecuted  as  to  matter  concerning  which  he  is  com- 
pelled to  testify  in  such  a  prosecution. 

State  v.  Whalen  (Wash.),  183  Pac.  130. 

8.  EVIDENCE  AT  FORMER  TRIAL. 

The  court  did  not  abuse  its  discretion,  on  the  trial  of  a 
charge  of  illegal  selling,  by  excluding  the  testimony  of  an 
absent  witness  given  on  a  former  trial  before  a  justice  of 
the  peace  where  the  facts  suggested  a  lack  of  diligence  to 
procure  the  attendance  of  such  witness. 

Hicks  v.  State  (Ark.),  215  S.  W.  685. 

In  a  contempt  proceeding  for  violation  of  a  decree  en- 
joining the  sale  of  liquor  and  the  maintenance  of  a  nuisance, 
the  defendant  could  not  complain  of  the  admission  of  testi- 


TITLE  II— SEC.  33  OF  ACT  375 

mony,  which  had  formerly  been  taken  and  transcribed  in  the 
criminal  proceeding,  where  he  had  stipulated  that  the  evi- 
dence might  be  so  used. 

State  v.  Kurent  (Kan.),  184  Pac.  721. 

9.  FORMER  ACQUITTAL  OR  CONVICTION. 

Where  there  was  evidence  of  a  sale  to  one  of  the  alleged 
purchasers,  evidence  that  defendant  had  been  acquitted  of 
the  charge  of  such  sale  was  admissible. 

Amonett  v.  State  (Tex.  Cr.  App.),  204  S.  W.  438. 

A  sale  for  which  defendant  had  been  tried  and  convicted, 
would  constitute  no  violation  of  the  law. 

Amonett  v.  State  (Tex.  Cr.  App.),  204  S.  W.  438. 

Rejection  of  testimony  that  the  same  liquors  were  in- 
volved in  a  prior  prosecution  and  acquittal,  though  such  tes- 
timony was  competent,  was  not  prejudicial,  where  a  number 
of  other  witnesses  testified  to  the  same  effect  as  witness 
would  have  done,  if  permitted. 

Lemon  i:  Commonwealth,  171  Ky.  822,  188  S.  W.  858. 

But  where  there  were  two  sales  of  the  same  whisky,  one 
by  defendant  to  a  stool  pigeon,  and  one  by  the  stool  pigeon 
to  the  officer  who  employed  him,  evidence  that  the  stool 
pigeon  had  been  indicted  for  making  the  sale  to  the  officer, 
and  convicted  on  his  plea  of  guilty,  was  inadmissible;  not  be- 
ing a  relevant  or  material  fact  on  the  issues  on  trial. 
Canales  v.  State  (Tex.  Cr.  App.),  215  S.  W.  964. 

\Yhere,  in  a  prosecution  for  taking  orders  for  the  sale  of 
intoxicants  in  nonlicense  territory,  the  state's  evidence  cov- 
ered all  orders  taken  within  a  year  prior  to  the  date  of  the 
prosecution,  an  acquittal  was  a  bar  to  any  subsequent  prose- 
cution based  upon  orders  taken  within  that  period. 
Sanders  v.  State,  115  Ark.  376,  171  S.  W.  142. 

10.  INDICTMENT  OR  CONVICTION  FOR  DIFFERENT  OFFENSES. 

It  is  error  to  require  a  defendant,  charged  with  violating 
the  liquor  law,  to  testify  that  he  had  been  previously  indicted 
for  a  similar  offense. 

Shepherd  v.  State,  76  Tex.  Cr.  App.  307,  174  S.  W.  609. 


376  TITLE  II— SEC.  33  OF  ACT 

Where  General  Reputation  in  Issue. — Where  accused, 
charged  with  selling  whisky  in  a  prohibition  county,  filed  his 
sworn  plea  for  suspension  of  sentence,  if  convicted,  he  there- 
by put  his  general  reputation  in  issue,  and  the  state  could 
show  that  he  had  been  indicted  for  various  offenses,  includ- 
ing unlawful  sales  of  liquor  in  prohibition  territory,  and  that 
indictments  other  than  the  one  under  which  he  was  being 
tried,  were  pending  against  him. 

Martoni  v.  State,  74  Tex.  Cr.  App.  90,  167  S.  W.  349. 

Second   Conviction  Carrying  Heavier   Penalty. — But 

when  a  person  under  prosecution  for  a  second  offense  carry- 
ing a  heavier  penalty,  is  charged  in  the  information  under 
one  name,  it  is  not  error  to  admit  evidence  of  a  former  con- 
viction under  a  different  name  for  the  like  offense,  when 
the  proof  is  clear  that  the  defendant  is  one  and  the  same 
person. 

Wilkins  v.  State  (Fla.),  78  So.  523. 

In  a  prosecution  under  Initiative  Measure  No.  3  (Laws 
1915,  p.  6)  §  8,  providing  that  it  shall  be  unlawful  for  a  phy- 
sician, after  he  has  been  convicted  a  second  time  of  a  vio- 
lation of  any  of  the  provisions  of  the  act,  to  thereafter  write 
any  prescriptions  for  the  furnishing,  delivery,  or  sale  of  in- 
toxicating liquor,  it  was  not  error  to  permit  the  state  to  show 
that  defendant  had  been  three  times  convicted  of  violating 
the  prohibition  law. 

State  v.  Emonds  (Wash.),  182  Pac.  584. 

Conclusiveness  of  Record  of  Former  Conviction. — In 

prosecution  for  permitting  liquor  to  be  kept  upon  premises 
for  the  purpose  of  sale  or  other  disposition,  where  previous 
conviction  was  charged,  defendant  was  not  entitled  to  go 
behind  the  record  of  the  former  conviction  and  introduce 
evidence  to  show  that  he  was  not  guilty  of  the  charge  upon 
which  that  conviction  was  based. 

State  v.  Dereiko  (Wash.),  182  Pac.  597. 

11.    SCIENTER  AND  INTENT. 

When,  by  statute,  an  act  is  made  an  offense  under  the 
liquor  laws  without  regard  to  the  intent  with  which  it  is  done, 
evidence  on  the  subject  of  intent,  is  not  material,  and  on  trial 


TITLE  II— SEC.  33  OF  ACT  377 

of  one  charged  with  the  violation  of  such  statute  there  is 
no  error  in  rejecting  such  evidence. 

State  v.  Ross,  70  W.  Va.  549,  74  S.  E.  670,  39  L  R  A 

N.  S.,  814n. 
Bacot  v.  State,  94  Miss.  225,  48  So.  228,  21  L.  R  A 

N.  S.,  524n. 
O'Donnell  v.  Commonwealth,  108  Va.  882,  62  S.  E.  373. 

Thus  where  aside  from  an  exception  in  the  case  of  pharma- 
ceutical preparations,  the  law  punished  the  fact  of  selling 
intoxicants  regardless  of  the  intent  of  the  seller;  evidence 
that  the  liquor  was  represented  to  accused  to  be  nonintoxi- 
cating  and  that  he  believed  it  to  be  so  was  inadmissible. 

Bacot  v.  State,  94  Miss.  225,  48  So.  228,  21  L.  R.  A., 
N.  S.,  526n. 

In  such  cases,  proof  of  the  sale  as  charged  and  the  in- 
toxicating character  of  the  liquor  is  all  that  is  required.  In- 
tent is  conclusively  presumed  when  the  sale  is  proved. 

Montgomery  v.  State,  11  Okla.  Cr.  App.  415,  142  Pac. 
1048. 

Good  Faith  as  a  (Mitigating  Circumstance. — But  while 
intention,  good  faith,  and  want  of  knowledge  that  the  liq- 
uor sold  was  intoxicating  are  not  defenses,  such  elements  do 
have  a  bearing  on  severity  of  punishment. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 

How  Intent,  etc.,  Shown  When  Relevant. — In  prose- 
cutions for  illicit  dealing  in  intoxicating  liquors,  and  crimes 
committed  for  profit,  it  is  competent  to  prove  intent,  where 
the  intent  is  material,  by  showing  matters  of  like  nature 
before  and  after  the  offense,  such  crimes  having  been  com- 
mitted with  deliberation,  in  defiance  of  law,  and  for  the  mo- 
tive of  making  profit  thereby. 

State  v.  Simdns  (N.  C.),  100  S.  E.  239. 

Proof  of  previous  acts  of  the  same  kind  is  admissible  for 
the  purpose  of  proving  defendant's  guilty  knowledge  or  in- 
tent. 

People  v.  Bullock,  173  Mich.  397,  139  N.  W.  43. 


378  TITLE  II— SEC.  33  OF  ACT 

Thus  in  a  prosecution  for  unlawfully  transporting  liquor 
into  a  prohibition  state  by  automobile,  evidence  of  a  prior 
trip  made  by  the  same  persons  between  the  same  places  a 
few  days  before,  and  connected  with  the  one  charged,  held 
admissible,  being  a  part  of  the  same  scheme,  and  as  show- 
ing motive  and  intent. 

Malcolm  v.  United  States  (C.  C.  A.),  256  Fed.  363. 
See  contra:  Ford  v.  United  States  (C.  C.  A.),  259  Fed. 
552. 

In  general,  it  is  permissible  to  show  any  facts  and  circum- 
stances legitimately  bearing  upon  the  question  of  intent  or 
guilty  knowledge,  as  the  arrangement  and  adaptation  of  the 
premises  to  the  illegal  business,  the  acts  of  the  accused  at  the 
time  of  his  arrest,  etc. 

Overton  v.  State,  11  Okla.  Cr.  App.  1,  140  Pac.  1135. 

State  v.  Billingsley,  99  Wash.  445,  169  Pac.  845. 

State  v.  Baldwin  (N.  C.),  100  S.  E.  348. 

State  v.  Simons  (N.  C.),  100  S.  E.  239. 

In  prosecution  for  unlawfully  keeping  liquor  at  a  drug 
store,  evidence  that  accused  also  had  a  warehouse  with  para- 
phernalia for  putting  up  whisky  for  sale  and  that  large  quan- 
tities of  whisky  were  found  in  the  warehouse,  is  admissible 
as  showing  the  intent  with  which  accused  possessed  liquors 
at  the  drug  store. 

State  v.  Billingsley,  99  Wash.  445,  169  Pac.  845. 

In  Bondurant  v.  State,  14  Okla.  Cr.  App.  388,  171  Pac. 
488,  it  was  held  that  such  testimony  was  admissible,  where 
one  was  charged  with  having  possession  of  liquor  with  intent 
to  violate  the  provisions  of  the  prohibitory  liquor  law,  for 
the  purpose  of  showing  the  unlawful  intent. 

Balfe  v.  People  (Colo.),  179  Pac.  137,  138. 

In  a  prosecution  for  having  intoxicating  liquor  in  his 
possession  for  the  purpose  of  sale,  the  jury  might  consider 
that,  when  officers  were  proceeding  to  take  and  carry  off 
the  liquor  which  defendant  had  brought  to  his  brother's 
residence,  the  defendant,  who  had  escaped,  returned  and 
locked  his  car  which  the  officers  were  about  to  use. 

State  v.  Baldwin  (N.  C.),  100  S.  E.  348. 


TITLE  II— SEC.  33  OF  ACT  379 

In  prosecution  for  having  possession  of  intoxicating  liquor 
for  purpose  of  sale,  where  more  than  one  gallon  of  liquor 
was  found  in  defendant's  possession  at  time  of  arrest,  creat- 
ing presumption  that  liquor  was  for  purpose  of  sale,  under 
Pub.  Laws  1913,  c.  44,  §  2,  evidence  of  defendant's  denial 
of  possession,  his  attempt  to  shoot  officer  making  arrest,  and 
his  being  found  later  making  a  still  is  competent  in  support 
of  the  presumption. 

State  v.  Simons  (N.  C.),  100  S.  E.  239. 

In  prosecution  for  having  possession  of  intoxicating  liquor 
for  purpose  of  sale,  evidence  that,  two  months  after  such 
liquor  had  been  found  in  defendant's  possession,  defendant 
had  constructed  a  new  still,  and  was  working  on  another, 
was  competent. 

State  v.  Simons  (N.  C.),  100  S.  E.  239. 

In  determining  the  purpose  for  which  accused  sold  Jamaica 
ginger,  the  jury  must  consider  all  the  evidence  concerning 
the  facts  and  circumstances  surrounding  the  sale,  including 
the  amount  sold  and  statements  made  by  the  purchaser,  as 
well  as  any  actual  knowledge  the  accused  had. 

State  v.  Hastings,  2  Boyce's  (25  Del.)  482,  81  Atl.  403. 

In  a  prosecution  for  violating  the  prohibition  law  by  sell- 
ing Jamaica  ginger,  evidence  that  he  sold  the  liquor  as  medi- 
cine in  good  faith  was  properly  excluded,  where  defendant 
had  made  no  attempt  to  comply  with  the  provisions  of  Const, 
art.  22,  or  the  statute  regulating  the  handling  of  intoxicat- 
ing liquor  for  medicinal  purposes. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

The  Carrying  Away  of  Empty  Barrels  from  Prem- 
ises.— In  a  prosecution  for  having  liquor  with  intent  to  sell, 
evidence  of  a  truckman  that  he  carried  away  empty  barrels 
similar  to  those  filled  with  liquor  found  in  possession  of 
respondent  held  admissible  to  show  intent. 

State  v.  Barr,  84  Vt.  38,  77  Atl.  914,  48  L.  R.  A.,  N.  S., 
302n. 

Inquiries  as  to  Character  of  Liquor,  Legality  of  De- 
livery, etc. — In  a  prosecution  for  the  illegal  sale  of  vinous 
liquors,  not  for  medicinal  or  sacramental  purposes,  under 


380  TITLE  II— SEC.  33  OF  ACT 

the  local  option  statute  (24  Del.  Laws,  c.  65)  accused  may 
show  in  defense  any  effort  made  by  him  to  ascertain  whether 
the  sale  of  the  liquor  sold  by  him  was  vinous  liquor  pro- 
hibited by  law,  and  if  he  had  reasonable  grounds  to  believe 
and  in  fact  did  believe  that  the  liquor  he  sold  was  not  vinous, 
it  would  be  a  good  defense ;  the  burden  being  upon  him,  how- 
ever, to  show  clearly  and  satisfactorily  that  a  reasonable  and 
careful  man,  anxious  to  obey  the  law,  would  have  believed 
under  the  circumstances  that  the  liquor  sold  was  not  vinous, 
and  that  accused  did  in  fact  entertain  such  belief  (adopted  by 
a  divided  court.) 

State  v.  Coverdale,  1  Boyce's  (24  Del.)  555,  77  Atl.  754. 

In  a  prosecution  against  defendant  express  company  for 
delivering  whisky  not  for  personal  use,  it  was  competent  to 
permit  question  to  be  asked  of  defendant's  agent  relative  to 
his  inquiries  about  the  propriety  of  delivering  the  whisky, 
and  what  information  he  received.  • 

Adams  Exp.  Co.  v.  Commonwealth,  177  Ky.  159,  197 
S.  W.  630. 

Expectation  of  Meeting  Owner  with  Trucks  to  Re- 
ceive the  Liquor. — Testimony  that  the  owner  of  whisky 
was  expected,  by  those  taking  it  by  boat  from  Missouri 
down  the  Mississippi,  to  meet  them  at  one  of  two  points  in 
Tennessee,  with  two  trucks  on  which  to  unload  it,  was  evi- 
dence that  it  was  intended  for  transportation  into  Tennes- 
see, for  permanent  stay  there,  in  violation  of  Act  March  3, 
1917,  §  5  (Comp.  St.  1918,  §  8739a). 

Bishop  v.  United  States  (C.  C.  A.),  259  Fed.  159. 

Statement  of  helper,  in  presence  of  owner  of  boat,  and 
not  questioned  by  him,  when  officers  came  on  board  and 
asked  the  destination  of  whisky  thereon,  that  they  expected 
the  owner  of  the  whisky  to  meet  them  at  one  of  two  points 
in  Tennessee  with  two  trucks  on  which  to  unload  it,  is  ad- 
missible against  the  boat  owner,  prosecuted  for  transporting 
the  whisky  into  Tennessee  in  violation  of  Act  March  3,  1917, 
§  5  (Comp.  St.  1918,  §  8739a). 

Bishop  v.  United  States   (C.  C.  A.),  259  Fed.  159. 


II— SEC.  33  OF  ACT  381 

Parol  Evidence  as  to  Check  Given  in  Payment. — In 

a  prosecution  for  introducing  intoxicating  liquor  into  that 
part  of  Oklahoma  which  was  formerly  Indian  Territory,  in 
violation  of  Act  March  1,  1895,  c.  145,  where  the  connec- 
tion of  defendant  with  the  purchase  and  shipment  of  the 
liquor  was  clearly  and  indisputably  shown,  and  it  was  proven 
without  contradiction  that  one  of  the  defendants  gave  his 
check  on  an  Oklahoma  bank  in  payment  for  the  liquor,  the 
admission  of  oral  testimony  as  to  the  amount  of  the  check 
and  the  bank  on  which  it  was  drawn  was  harmless. 

De  Moss  v.  United  States,  162  C.  C.  A.  259,  250  Fed.  87. 

12.  POSSESSION  AS  EVIDENCE. 

Possession  as  Evidence  of  Unlawful  Manufacture.— 

In  a  prosecution  of  a  defendant,  charged  with  violation  of 
the  law  prohibiting  manufacture  of  intoxicating  liquors,  as 
accessory  after  the  fact,  evidence  that  defendant  took 
two  bottles  and  a  jug  from  under  a  public  road  culvert 
shortly  before  the  still  was  discovered,  is  admissible. 
Higgins  v.  State  (Ark.),  206  S.  W.  440. 

In  a  prosecution  for  manufacturing  alcoholic  liquors,  tes- 
timony by  witnesses  that  a  negro  man  had  come  out  of  de- 
fendant's house  shortly  before  she  was  arrested  with  "Choc" 
beer,  which  was  intoxicating,  which  he  sold  to  witnesses, 
was  competent  as  tending  to  show  that  "Choc"  beer  was 
made  by  some  one  in  the  house  of  defendant. 
Patterson  v.  State  (Ark.),  215  S.  W.  629. 

Possession  as  Evidence  of  Unlawful  Possession  or 
Transportation. — On  trial  of  a  person  charged  with  hav- 
ing unlawful  possession  of  intoxicating  liquor  with  intent  to 
sell  the  same,  the  quantity  and  kind  of  liquor,  the  size  and 
number  of  packages,  the  occasion  upon  and  circumstances 
under  which  it  is  found,  the  conduct  and  demeanor  of  the 
accused  at  the  time  and  prior  to  the  discovery,  and  any  and 
all  other  circumstances  reasonably  calculated  to  throw  light 
on  the  purpose  and  intent  with  which  the  liquor  was  pos- 
sessed, are  admissible  in  evidence,  and  are  all  entitled  to 
consideration  by  the  jury  in  arriving  at  a  verdict. 

Overton  v.  State,  11  Okla.  Cr.  App.  1,  140  Pac.  1135. 

Kirk  v.  State,  14  Ala.  App.  44,  70  S.  E.  990. 


382  TITLE  II— SEC.  33  OF  ACT 

Defendant's  declaration  with  reference  to  the  liquor  found 
and  testimony  tending  to  show  concealment  inconsistent 
with  keeping  for  personal  use  is  admissible. 

Kirk  v.  State,  14  Ala.  App.  44,  70  S.  E.  990. 

In  a  prosecution  for  having  liquor  in  possession  with  the 
intent  to  sell  the  same,  the  quantity  in  possession  is  a  circum- 
stance which  may  be  considered  in  determining  the  exist- 
ence or  absence  of  the  intent  to  sell. 

Coiiley  v.  State  (Okla.  Cr.  App.),  179  Pac.  480,  483. 

Billingsley  v.  State,  4  Okla.  Cr.  App.  597,  113  Pac.  241. 

Watson  v.  State,  8  Ala.  App.  414,  62  So.  997. 

In  a  prosecution  for  keeping  intoxicating  liquors  in  a  drug 
store  with  intent  to  sell  unlawfully,  it  is  not  error  to  admit 
evidence  as  to  quantity  and  kind  kept  on  hand,  notwithstand- 
ing the  druggist  is  the  sole  judge  under  the  law  of  the  kind 
and  quantity  of  intoxicating  liquors  the  needs  of  his  busi- 
ness require,  as  it  may  be  a  material  link  in  the  chain  of 
circumstances  tending  to  show  his  guilt. 

State  v.  McCaskey,  97  Wash.  401,  166  Pac.  1163. 

Evidence  that  a  suit  case,  seized  while  in  the  possession 
of  defendant  when  arrested,  and  opened  after  a  warrant 
was  issued  charging  him  with  violation  of  the  law  regulat- 
ing the  transportation  of  ardent  spirits,  contained  liquor,  is 
admissible. 

Lucchesi  v.  Commonwealth,  122  Va.  872,  94  S.  E.  925. 

In  a  prosecution  for  carrying  around  on  defendant's  per- 
son and  in  a  vehicle  intoxicating  liquors  with  intent  to  sell 
and  dispose  of  the  same  by  gift  or  otherwise,  that  defendant 
carried  four  gallons  of  liquor  in  a  suit  case  was  competent 
on  the  question  of  intent. 

State  v.  Butler  (la.),  173  N.  W.  239. 

In  prosecution  for  unlawful  possession  of  intoxicating  liq- 
uor, where  exhibits  of  bottles  of  liquor  were  offered  in  evi- 
dence by  state,  which  had  been  found  and  seized  wrhen  no- 
body was  in  possession  of  premises,  it  was  within  trial  court's 
discretion  to  admit  exhibits  and  to  allow  state  to  subse- 
quently connect  defendant  with  their  possession. 

High  v.  State  (Okla.  Cr.  App.),  180  Pac.  572. 


TITLE  II— SEC.  33  OF  ACT  383 

Possession  as  Evidence  of  Unlawful  Sale. — Proof  of 
the  possession  of  whisky  or  other  intoxicating  liquor  by  the 
accused  at  or  about  the  time  of  the  alleged  sale  is  admissible. 

Bishop  v.  State,  18  Ga.  App.  714,  90  S.  E.  369. 

State  v.  Boynton,  155  N.  C.  456,  71  S.  E.  341. 

Dean  v.  State,  130  Ark.  322,  197  S.  W.  684. 

Jackson  r.  State  (Tex.  Cr.  App.),  200  S.  \V.  150. 

Mills  v.  State,  11  Ga.  App.  383,  75  S.  E.  266. 

Harwell  v.  State,  12  Ala.  App.  265,  68  So.  500. 

Martoni  v.  State,  74  Tex,  Cr.  App.  90,  167  S.  W.  349. 

Wooten  v.  State,  17  Ga.  App.  333,  86  S.  E.  740. 

Cooper  v.  Gadsden,  10  Ala.  App.  609,  65  So.  715. 

Holmes  v.  State,  12  Ga.  App.  359,  77  S.  E.  187. 

Moore  <v.  State,  12  Ala.  App.  243,  67  So.  789. 

D'Amico  v.  State  (Del.),  102  Atl.  78. 

In   general,   the   circumstances  under  which   liquors   are 
kept  and  that  they  are  kept  at  other  places  may  be  shown. 
State  v.  Boynton,  155  N.  C.  456,  71  S.  E.  341. 

Evidence  that  prior  to  the  sale  charged,  defendant  had 
whisky  in  his  possession  at  different  places  in  the  city  and 
that  at  the  places  under  his  control  whisky  was  being  sold 
and  drunk,  and  that  persons  who  had  been  in  his  places  of 
business  had  seen  whisky  and  beer  therein,  is  admissible  to 
show  that  defendant  had  whisky  on  hand  in  prohibited  ter- 
ritory and  was  prepared  to  make  the  illegal  sale  charged  by 
the  indictment. 

State  v.  Boynton,  155  N.  C.  456,  71  S.  E.  341. 

Testimony  on  a  prosecution  for  engaging  in  the  busi- 
ness of  selling  liquor  in  prohibition  territory,  that  on  one 
occasion  when  witness  bought  whisky  of  defendant  he  had 
on  hand  5  or  6  quarts  and  on  another  occasion  7  or  8  pints 
is  admissible. 

Jackson  v.  State  (Tex.  Cr.  App.),  200  S.  W.  150. 

In  the  trial  of  one  charged  with  the  sale  of  intoxicating 
liquor,  it  was  not  error  to  allow  the  introduction  in  evidence 
of  a  number  of  quart  bottles  containing  whisky  and  a  num- 
ber of  empty  bottles  which  had  contained  whisky,  all  of 
the  bottles  having  been  found  in  the  house  where  the  sale 
was  alleged  to  have  taken  place. 

Holmes  v.  State,  12  Ga.  App.  359,  77  S.  E.  187. 


384  TITLE  II— SEC.  33  OF  ACT 

"There  was  no  error  in  admitting  testimony,  over  ob- 
jection of  counsel  for  the  defendant,  to  the  effect  that  the 
defendant's  house  was  searched  and  several  bottles  of  whisky 
were  found  therein,  notwithstanding  the  fact  that  the  whisky 
itself  was  not  produced  in  court.  Proof  as  to  the  possses- 
sion  of  whisky  by  the  defendant  at  or  about  the  time  of  the 
alleged  sale  tended  to  corroborate  the  direct  evidence  show- 
ing a  sale,  and  this  testimony  was  not  inadmissible  because 
irrelevant." 

Bishop  v.  State,  18  Ga.  App.  714,  90  S.  E.  369. 

In  a  prosecution  for  violating  the  prohibition  law,  a  wit- 
ness' testimony  that,  when  he  bought  whisky  from  defend- 
ant he  saw  three  bottles  of  beer  in  defendant's  store,  was 
admissible  as  prima  facie  evidence  under  the  express  pro- 
visions of  Acts  1909,  p.  64,  §  4,  that  defendant,  who  had 
no  liquor  license  kept  liquors  for  sale  contrary  to  law,  and 
was  proper  to  be  considered  in  connection  with  evidence 
tending  to  show  sale  of  whisky  to  the  witness. 
, Moore  v.  State,  12  Ala.  App.  243,  67  So.  789. 

In  a  prosecution  for  selling  liquor  without  license  and 
contrary  to  law,  evidence  of  the  finding  of  whisky  concealed 
under  a  window  in  defendant's  bedroom  in  connection  with 
other  evidence  as  to  the  method  of  its  concealment  and  as 
to  a  sale  by  defendant,  was  admissible  as  tending  to  show 
the  keeping  of  liquors  for  sale,  and  thereby  corroborating 
the  evidence  on  the  main  issue. 

Harwell  v.  State,  12  Ala.  App.  265,  68  So/  500. 

In  a  prosecution  for  illegal  sale  of  intoxicating  liquors  in 
the  barrel,  it  was  permissible  for  a  witness  to  say  that 
shortly  before  the  sale  there  was  no  barrel  of  liquor  at  the 
place  at  which  defendant  delivered  it,  as  preliminary  to 
showing  that  after  the  alleged  sale  there  was  a  barrel  at 
such  place. 

D'Amico  v.  State   (Del.),  102  Atl.  78. 

Evidence  concerning  whisky  taken  from  the  defendant 
immediately  prior  to  the  sales  for  which  he  was  being  pros- 
ecuted was  admissible  as  tending  to  show  what  defendant's 
business  was  at  the  time  of  the  sales. 

Dean  v.  State,  130  Ark.  322,  197  S.  W.  684. 


TITLE  II— SEC.  33  OF  ACT  385 

A  witness  for  the  state  having  testified  that  he  bought  in- 
toxicating liquor  from  the  accused  a  large  number  of  times 
during  the  two  years  immediately  preceding  the  finding  of 
the  bill  of  indictment,  it  was  not  erroneous  to  admit,  in 
corroboration  of  this  evidence,  the  testimony  of  another 
witness  that  during  this  period  he  had  seen  the  accused 
several  times  with  his  pockets  loaded  with  whisky. 
Mills  v.  State,  11  Ga.  App.  383,  75  S.  E.  266. 

On  a  trial  for  selling  whisky  in  violation  of  a  city  prohi- 
bition ordinance,  evidence  that  just  prior  to  the  leaving  of  a 
bottle  of  whisky  where  the  prosecuting  witness  received  it 
accused's  pockets  were  bulging  with  something  like  the  bulk 
of  bottles  was  admissible  as  a  part  of  the  circumstance  cul- 
minating in  the  sale  testified  to. 

Cooper  v.  Gadsden,  10  Ala.  App.  609,  65  So.  715. 

On  a  trial  for  selling  whisky  in  a  prohibition  county,  evi- 
dence that  officers  under  a  search  warrant  found  in  ac- 
cused's trunk  about  76  pint  bottles  of  whisky  was  admissi- 
ble. 

Martoni  v.  State,  74  Tex.  Cr.  App.  90,  167  S.  W.  349. 

Evidence  that  a  large  quantity  of  whisky,  in  pint  bottles, 
belonging  to  the  defendant,  was  discovered  in  his  trunk  was 
admissible  on  his  trial  for  the  offense  of  selling  intoxicating 
liquors. 

Wooten  v.  State,  17  Ga.  App.  333,  86  S.  E.  740. 

Nearness  in  Point  of  Time. 

See  also  ante,  "Scope  of  Inquiry," 

The  possession  of  intoxicating  liquors  by  the  defendant  at 
or  about  the  time  of  the  alleged  sale  is  a  circumstance  of 
corroboration  of  more  or  less  weight  according  to  its  near- 
ness or  remoteness  to  the  matter  under  investigation. 
Wooten  v.  State,  17  Ga.  App.  333,  86  S.  E.  740. 

Evidence  that  there  had  been  found  on  defendant's  prem- 
ises, about  a  year  before  the  alleged  sale  about  2y2  pints  of 
whisky,  several  old  bottles  which  had  previously  contained 
whisky,  two  large  cartons  which  had  been  opened,  and  about 
—25 


386  TITLE  II— SEC.  33  OF  ACT 

15  old  bottles  in  a  loft,  was  irrelevant;  yet  the  error  in  the 
admission  of  such  testimony  did  not  require  the  grant  of  a 
new  trial,  there  being  positive  evidence  authorizing  a  find- 
ing that  the  sale,  as  alleged  in  the  indictment,  had  taken 
place. 

Jackson  v.  State,  12  Ga.  App.  480,  77  S.  E.  651. 

Testimony  that  on  the  day  following  the  alleged  sale  ac- 
cused had  in  his  possession  liquor  of  the  same  kind  and  in 
similar  containers,  was  admissible. 

Porras  v.  State,  19  Ariz.  131,  166  Pac.  288. 

Evidence  that  when  arrested  on  the  second  day  after  the 
sale,  defendant  had  an  unopened  pint  of  whisky  on  his  per- 
son, was  admissible  as  a  circumstance  to  show  that  he  made 
the  sale  as  charged. 

McCuen  v.  State,  75  Tex.  Cr.  App.  108,  170  S.  W.  738. 

Since  precise  time  at  which  crime  committed  need  not  be 
stated  in  an  information  it  is  not  error,  in  a  prosecution  for 
keeping  intoxicating  liquors  in  a  drug  store  with  intent  to 
sell  unlawfully,  to  admit  evidence  as  to  result  of  search  of 
defendant's  premises  by  police  officers  four  days  after  date 
fixed  as  that  of  commission  of  crime. 

State  v.  McCaskey,  97  Wash.  401,  166  Pac.  1163. 

The  testimony  of  defendant  and  his  witnesses  being  in 
direct  contradiction  of  that  for  the  people  on  prosecution 
for  violation  of  prohibition  law,  evidence  of  the  finding  of 
liquors  on  the  premises  several  days  after  date  of  alleged 
offense  was  admissible  in  corroboration  and  on  credibility. 
Lakomy  v.  People  (Colo.),  178  Pac.  571. 

Evidence  of  a  search  of  defendant's  shop  made  by  the 
officers  thirteen  days  after  the  alleged  unlawful  sale,  and  of 
the  whisky  and  empty  bottles  then  found  there,  was  admis- 
sible, as  tending  to  show  that  intoxicating  liquor  had  been 
kept  there  for  illegal  traffic,  and  as  connecting  defendant  in 
ownership  with  the  whisky  sold  at  the  time  alleged. 
State  v.  Legendre,  89  Vt.  526,  96  Atl.  9. 

On  the  trial  of  one  charged  with  illegally  selling  whisky 
it  is  not  error  to  admit  evidence  that  the  house  where  the 


TITLE  II— SEC.  33  OF  ACT  387 

accused  lived  was  searched  by  an  officer  subsequently  to  the 
day  on  which  the  alleged  sale  was  made,  and  that  bottles  of 
whisky  and  empty  bottles  which  had  contained  whisky  were 
found  therein.  Cole  v.  State,  120  Ga.  485,  48  S.  E.  156; 
Taylor  v.  State,  5  Ga.  App.  237,  62  S.  E.  1048.  The  fact 
that  the  direct  evidence  was  of  a  sale  some  months  previous 
to  the  search  of  the  house  where  the  accused  lived  would 
only  affect  the  weight  or  probative  value  of  the  circum- 
stances that  whisky  and  empty  whisky  bottles  were  found 
in  the  house;  and  the  further  fact  that  the  accused  was  a 
married  woman  living  with  her  husband  in  the  house  where 
the  whisky  and  empty  whisky  bottles  were  found  would  not 
render  the  evidence  inadmissible,  where  the  positive  evi- 
dence showed  that  she,  and  not  her  husband  had  previously 
sold  the  whisky. 

Beaty  v.  State,  7  Ga.  App.  327,  66  S.  E.  808. 

Craig  v.  State,  9  Ga.  App.  233,  70  S.  E.  974. 

Such  evidence  seems  to  be  admissible  to  show  guilty 
knowledge  or  intent,  and  it  is  error  to  admit  it  for  other 
purposes. 

Weinberg  v.  State,  81  Tex.  Cr.  App.  306,  194  S.  W. 

1116. 

Phillipps  v.   State    (Okla.  Cr.  App.),  183  Pac.  521. 
State  v.  O'Toole   (Me.),  108  Atl.  99. 

Admission  of  testimony  that  the  sheriff  took  from  de- 
fendant's residence  some  beer,  wine,  and  whisky  some  time 
subsequent  to  alleged  sale  was  reversible  error. 

Weinberg  v.  State,  81  Tex.  Cr.  App.  306,  194  S.  W. 
1116. 

In  a  prosecution  for  unlawful  possession  of  intoxicating 
liquor,  it  was  error  to  permit  prosecution  to  prove  that 
three  or  four  weeks  after  filing  of  information  the  officers 
found  intoxicating  liquors  at  same  place. 

Phillips  v.  State  (Okla.  Cr.  App.),  183  Pac.  521. 

In  prosecution  for  having  possession  of  intoxicating  liq- 
uor, with  intent  to  unlawfully  sell  it,  the  discretion  of  the 
trial  judge  was  not  wrongly  exercised  in  admitting  evi- 
dence that  some  18  months  before  the  date  alleged  in  the 
complaint  persons  were  seen  going  in  and  coming  out  of 
defendant's  place,  and  that  on  one  day  about  three  months 


388  TITLE  II— SEC.  33  OF  ACT 

later  defendant  had  intoxicating  liquor  in  her  possession ; 
the  jury  being  instructed  that  the  evidence  was  competent 
only  in  relation  to  the  intent  with  which  defendant  kept  the 
liquor  in  question. 

State  v.  O'Toole  (Me.),  108  Atl.  99. 

Liquor  Found  by  Means  of  Unlawful  Search. — In  a 

prosecution  for  unlawfully  keeping  intoxicating  liquor  for 
sale,  where  the  sheriff  searched  the  defendant's  store  after 
6  o'clock,  but  while  it  was  still  open,  testimony  that  the  de- 
fendant agreed  to  let  him  search  the  upstairs  room,  but  re- 
fused to  open  a  little  room  at  the  back  of  the  store  where 
the  liquor  was  subsequently  found,  was  not  inadmissible 
on  the  ground  that  the  defendant  had  a  right  to  refuse  a 
search  after  6  o'clock,  since  Gen.  Acts  Sp.  Sess.  1909,  p. 
77,  §  22,  subd.  7  permits  such  a  search  where  the  premises 
are  open  and  the  room  was  a  part  of  the  store  premises. 
Patterson  v.  State,  8  Ala.  App.  420,  62  So.  1023. 

Even  if  it  was  error  to  allow  a  witness  to  swear,  "We 
had  a  search  warrant  to  search  Gene  Page's  house  for  liq- 
uor," the  admission  of  this  evidence  could  hardly  have  af- 
fected the  jury  and  caused  them  to  find  a  verdict  of  guilty, 
if  without  this  evidence  they  would  not  have  done  so.  More- 
over, evidence  obtained  by  an  illegal  and  unauthorized  search 
is  admissible  against  the  defendant.  Calhoun  v.  State,  144 
Ga.  679,  87  S.  E.  893.  In  addition,  this  ground  of  the  mo- 
tion states  that  when  this  testimony  was  objected  to  there 
was  "no  ruling  by  the  court."  A  failure  to  renew  and  in- 
sist upon  the  motion  to  reject  the  evidence  will  be  consid- 
ered as  a  waiver  of  the  objection.  Lindsay  v.  State,  138 
Ga.  818,  76  S.  E.  369,  and  cases  cited;  Thurman  v.  State, 
14  Ga.  App.  543,  81  S.  E.  796,  and  cases  cited. 
Page  v.  State  (Ga.),  99  S.  E.  55. 

Return  on  Search  Warrant. — Where  the  sheriff  had 
seized  a  large  quantity  of  liquor  under  a  search  warrant 
against  the  defendant,  and  could  not  remember  the  descrip- 
tion of  it  without  reference  to  his  return,  which  he  knew 
to  be  correct  when  he  made  it,  the  return  was  admissible, 
both  as  a  means  of  refreshing  his  recollection  and  as  docu- 
mentary evidence. 

Patterson  v.  State,  8  Ala.  App.  420,  62  So.  1023. 


TITLE  II— SEC.  33  OF  ACT  389 

13.  POSSESSION  OF  PREMISES. 

Where  defendant  was  charged  with  selling  intoxicating 
liquor  in  a  prohibition  district  at  a  particular  time  and  place, 
evidence  tending  to  show  that  the  defendant  was  in  charge 
of  said  place  shortly  before  the  date  of  the  alleged  offense 
is  relevant  to  the  issue. 

State  v.  Stanley,  134  La.  131,  63  So.  850. 

In  prosecution  for  violation  of  prohibition  law,  testimony 
of  two  witnesses  for  the  state  that  accused  was  in  posses- 
sion of  the  premises  where  they  found  liquor,  sufficiently 
connected  accused  with  both  the  premises  and  the  posses- 
sion of  the  liquor  to  render  their  testimony  admissible,  not- 
withstanding testimony  of  several  witnesses  for  accused 
that  she  was  not  in  possession  of  such  premises. 
Bridgeforth  v.  State  (Ala.  App.),  77  So.  77. 

In  a  prosecution  for  unlawfully  receiving  alcoholic  liquors, 
testimony  that  liquor  was  found  on  accused's  premises  is 
competent  where  witnesses  had  previously  testified  that  they 
took  liquor  to  such  premises  after  the  law's  enactment. 
Rogers  v.  State,  133  Ark.  85,  201  S.  W.  845. 

Liquor  on  Adjacent  Premises,  Across  Street,  etc.— 

Evidence  of  the  finding  of  beer  in  a  building  across  the 
street  from  accused's  place  of  business  is  inadmissible, 
where  there  was  no  evidence  connecting  accused  with  the 
place  or  of  keeping  liquor  in  that  place. 

Cravey  v.  State,  10  Ala.  App.  168,  64  So.  756. 

The  court  did  not  err  in  refusing  to  rule  out  the  testi- 
mony of  a  city  policeman  to  the  effect  that  he  found  two 
baskets  full  of  whisky  in  a  house  immediately  adjacent  to 
the  defendant's  place  of  business,  or  in  admitting  in  evi- 
dence the  whisky  alleged  to  have  been  so  found.  It  was 
for  the  jury  to  say  whether  the  house  where  the  whisky 
was  found  was  or  was  not  a  nearby  place  or  room  used  by 
the  proprietor  in  connection  with  his  business  for  keeping 
therein  such  liquors  as  he  might  desire  to  furnish  others  in 
violation  of  the  prohibition  law. 

AlcAllister  v.  State,  17  Ga.  App.  159,  86  S.  E.  412. 


390  TITLE  II— Sec.  33  of  ACT 

Ownership  of  Building  or  Premises. — While,  in  a 
prosecution  for  having  in  possession  intoxicating  liquors  for 
illegal  sale,  it  is  immaterial  whether  accused  owned  the 
building  in  which  they  were  stored,  or  the  liquors,  if  he  had 
possession,  such  facts  are  admissible  as  tending  to  show  the 
fact  of  possession. 

Lemon  v.  Commonwealth,  171  Ky.  822,  188  S.  W.  858. 

But  in  prosecution  for  having  unlawful  possession  of  in- 
toxicating liquors  at  a  drug  store,  cross  examining  a  wit- 
ness to  show  whether  he  noticed  a  certificate  of  registration 
in  another's  name  at  the  drug  store  was  improper. 

State  v.  Billingsley,  99  Wash.  445,  169  Pac.  845. 

The  certificate  of  registration  of  a  drug  store  under  Rem. 
Code  1915,  §  8464,  making  declaration  of  ownership  pre- 
sumptive evidence  of  ownership,  was  not  admissible;  the 
charge  being  the  keeping  of  intoxicating  liquors  for  an 
unlawful  purpose,  and  not  keeping  the  drug  store  for  an 
unlawful  purpose. 

State  v.  Billingsley,  99  Wash.  445,  169  Pac.  845. 

Ownership  of  Liquor  Sold  or  Found  in  Possession. 

—Where  a  state's  witness  testified  that  he  bought  whisky 
from  accused,  who  personally  delivered  it  and  received  the 
money  paid  by  the  witness,  the  ownership  of  the  whisky 
was  immaterial,  and  the  exclusion  of  evidence  of  owner- 
ship of  whisky  taken  away  by  the  witness  on  another  occa- 
sion was  proper. 

Roden  v.  State,  3  Ala.  App.  197,  58  So.  74. 

And  in  prosecution  for  violating  an  ordinance  of  a  city 
by  having  in  possession  more  than  two  quarts  of  intoxi- 
cating liquor  other  than  beer,  the  ownership  of  the  liquor 
found  in  defendant's  possession  was  immaterial. 

Seattle  v.  Brookins,  98  Wash.  290,  167  Pac.  940. 

Neither  the  ownership  of  the  whisky  found  in  the  cellar 
of  a  storeroom,  in  which  was  conducted  a  business  of 
which  defendant  had  charge  as  general  manager,  nor  the 
opinion  on  that  subject  of  the  officer  who  seized  it,  is 


TITLE  II— SEC.  33  OF  ACT  391 

material   on   a  prosecution   for  keeping  prohibited  liquors 
for  a  sale. 

Brigman  v.  State,  8  Ala.  App.  400,  62  So.  980. 

Evidence  that  the  accused  did  not  own  the  intoxicating 
liquor  found  in  his  place  of  business,  or  that  it  was  there 
without  his  knowledge  or  consent,  was  relevant  to  his  de- 
fense, and  therefore  testimony  offered  by  the  accused  to 
prove  that  the  intoxicating  liquor  found  in  his  place  of 
business  was  in  fact  bought  by  one  of  his  employees  for 
persons  not  connected  with  the  place  of  business,  and  which 
tended  to  show  also  that  the  liquor  was  not  in  the  actual 
possession  of  the  accused,  but  was  in  the  temporary  pos- 
session of  his  employee,  for  the  purpose  of  being  delivered 
by  the  employee  to  those  for  whom  he  had  bought  it,  was 
relevant  and  material,  and  should  have  been  admitted. 

Bloodworth  v.  Mulledgeville,  12  Ga.  App.  560,  77  S.  E. 
1131. 

A  conviction  for  keeping  intoxicating  liquors  for  sale 
cannot  be  predicated  on  evidence  showing  that  defendant's 
boarder  kept  such  liquor  locked  in  a  trunk  in  his  room. 

Fair  v.  State  (Ala.  App.),  75  So.  828. 

Affidavit  as  Admission  of  Ownership. — In  a  prose- 
cution for  keeping  intoxicating  liquors  for  sale,  where  it 
was  proved  that  the  sheriff  had  seized  a  large  quantity  of 
liquor  from  a  room  adjoining  defendant's  store,  an  affida- 
vit claiming  the  liquor,  made  thereafter  by  the  defendant, 
was  competent  as  an  admission  of  his  keeping  the  liquor 
under  circumstances  which  Gen.  Acts  Sp.  Sess.  1909,  p.  64, 
§  4,  makes  prima  facie  evidence  of  an  unlawful  purpose. 

Patterson  v.  State,  8  Ala.  App.  420,  62  So.  1023. 

Kegs,  Jugs,  Bottles,  etc.,  about  Premises. — On  the 

issue  of  unlawful  sale  of  liquor,  or  the  keeping  of  liquor 
for  unlawful  sale  or  other  unlawful  purpose,  it  is  compe- 
tent for  the  state  to  show  that  there  were  found  on  or 
about  the  defendant's  premises  quantities  of  empty  whisky 
barrels,  or  beer  kegs,  jugs  or  bottles.  Such  circumstance 
is  corroboratory  and  is  proper  to  go  before  the  jury  in  con- 


392  TITLE  II— Sue.  33  of  ACT 

nection  with  other  evidence  tending  to  show  unlawful  sale 
or  the  unlawful  possession  of  prohibited  liquors. 

Thomas  v.  State,  13  Ala.  App.  246,  68  So.  799. 
Smith  v.  State,  12  Ga.  App.  482. 
State  v.  Manship,  174  N.  C.  798,  94  S.  E.  2. 
State  v.  Turner,  171  N.  C.  803,  88  S.  E.  523. 
Borders  v.  Macon,  18  Ga.  App.  333,  89  S.  E.  451. 

On  the  trial  of  one  charged  with  the  sale  of  intoxicating 
liquor,  evidence  that  on  the  premises  where  the  sale  was 
alleged  to  have  been  made  were  found  numerous  empty 
bottles  which  had  contained  whisky,  and  other  bottles  and 
jugs  which  did  contain  whisky,  was  admissible  in  corrobo- 
ration  of  the  testimony  in  behalf  of  the  state  that  a  sale 
had  been  made. 

Smith  v.  State,  12  Ga.  App.  482,  77  S.  E.  651. 

On  a  trial  for  retailing  spirituous  liquors,  the  testimony 
of  the  sheriff  that  just  outside  defendant's  store  he  found 
a  box  of  bottles  and  a  sack  full  of  bottles,  both  of  which 
were  placed  before  the  jury,  and  which  he  testified  cor- 
responded in  appearance  and  labels  with  the -bottles  which 
the  prosecuting  witness  testified  he  purchased  from  defend- 
ant, was  admissible. 

State  v.  Manship,  174  N.  C.  798,  94  S.  E.  2. 

In  a  prosecution  for  having  in  his  possession  intoxicat- 
ing liquors  for  the  purpose  of  sale,  evidence  of  the  condi- 
tion of  defendant's  premises  and  the  liquor  corks,  etc., 
stored  therein,  is  competent  to  show  purpose  of  defendant 
in  having  the  liquor. 

State  v.  Baldwin  (N.  C),  100  S.  E.  345. 

In  a  prosecution  for  selling  liquor  and  having  liquor  in 
possession  for  sale,  evidence  of  a  witness  that  he  had  much 
complaint  from  the  neighborhood  where  defendant  lived, 
and  went  out  and  searched  and  found  empty  liquor  kegs 
and  jugs  a  couple  of  hundred  yards  in  the  woods  behind 
defendant's  house,  and  also  some  liquor  in  his  pantry,  was 
admissible. 

State  v.  Turner,  171  N.  C.  803,  88  S.  E.  523. 


TITLE  II— SEC.  33  OF  ACT  393 

"It  was  not  improper  to  permit  a  witness  to  testify  that 
he  had  seen  drays  'coming  there  and  taking  away  stuff, 
apparently  whisky;  there  were  empty  whisky  barrels  and 
packages  wrapped  in  paper  shaped  like  bottles'  that  negroes 
went  and  came  with  packages;  that  a  dray  carried  off  two 
or  three  loads  of  empty  bottles;  that  they  were  whisky 
barrels,  to  the  best  of  his  knowledge  and  belief  and  that 
there  was  'a  pretty  strong  odor'  of  whisky  at  the  place. 
The  evidence  was  not  inadmissible  as  a  conclusion,  and  was 
not  irrelevant  and  immaterial." 

Borders  v.  Macon,  18  Ga.  App.  333,  89  S.  E.  451. 

The  mere  finding  of  empty  beer  bottles,  however,  creates 
no  presumption  of  illegal  sale  or  keeping  for  sale. 

Nies  v.  District  Court  (la.),  161  N.  W.  316. 

Presence  of  Still  or  Bar  Equipment;  General  Ar- 
rangement and  Adaptation  of  Premises  to  Liquor 
Business. — The  defendant  being  charged  with  the  sale  of 
whisky  or  with  having  it  in  his  possession,  there  is  no  er- 
ror in  admitting  testimony  that  apparatus  for  distilling 
whisky  was  found  on  his  premises.  This  is  a  circumstance 
which  may  properly  be  considered  by  the  jury. 

Trentham  v.  State,  22  Ga.  App.  134,  95  S.  E.  538. 
Compapre  Craig  v.  State,  9  Ga.  App.  233,  70  S.  E.  974. 
Cole  v.  State,  120  Ga.  485,  48  S.  E.  156. 

Evidence  that  a  bar,  which  was  almost  a  perfect  imita- 
tion of  a  soloon  bar,  was  maintained  on  the  premises,  was 
a  circumstance  which  the  jury  might  take  into  considera- 
tion in  determining  whether  the  place  was  used  for  the 
purpose  of  keeping  for  sale  or  selling  intoxicating  liquors. 

State  v.  Fountain  (la.),  168  N.  W.  285. 

\Yhere  the  defense  was  that  the  place  where  the  alleged 
nuisance  was  being  maintained  was  only  a  lodgeroom 
where  the  members  occasionally  had  a  keg  of  beer  on  tap, 
the  evidence  of  the  officer  serving  the  warrant,  which 
showed  the  situation  of  the  premises,  the  crowd,  the  liq- 
uors, and  paraphernalia  of  the  place,  and  the  presence  of 
the  defendant  and  his  acts,  was  competent,  although  the 


394  TITLE  II— SEC.  33  OF  ACT 

information  may  have  been  filed  the  day  before  the  officer 
served  the  warrant. 

State  v.  Berger,  97  Kan.  366,  155  Pac.  40. 

That  the  place  where  liquors  were  found  bore  evidence 
of  having  been  used  before  for  the  purpose  of  storage  or 
sale  is  admissible  as  a  statement  of  a  collective  fact. 
Harwell  v.  State,  12  Ala.  App.  265,  68  So.  500. 

Where  a  large  quantity  of  liquor  was  found  in  a  room 
back  of  defendant's  store,  it  was  proper  in  a  prosecution 
for  unlawfully  keeping  prohibited  liquors,  to  introduce  evi- 
dence showing  that  the  room  was  inclosed  by  a  high  solid 
fence,  as  a  circumstance  showing  that  an  unlawful  busi- 
ness was  being  carried  on  there. 

Patterson  v.  State,  8  Ala.  App.  420,  62  So.  1023. 

Evidence  of  "Saloon"  Sign.— Under  Acts  1909  (Sp. 
Sess.)  p.  94,  §  33^2  which  permits  proof,  in  a  trial  of  a 
dealer  of  intoxicating  liquors  for  unlawful  sale,  etc.,  that 
he  maintained  a  sign  having  the  word  "saloon,"  the  state  is 
not  entitled  to  show  that  one  prosecuted  as  a  bottler  per- 
mitted such  a  sign  to  remain  over  his  place  of  business ;  it 
having  been  there  when  he  rented  the  premises. 

Sheppard  v.  State,  5  Ala.  App.  178,  59  So.  333. 

Photographs  and  Diagrams  of  Premises. — In  a  pros- 
ecution for  the  illegal  manufacture  of  liquor,  a  witness  who 
was  endeavoring  to  show  how  the  parts  of  the  distillery 
found  in  defendant's  house  might  be  assembled  so  as  to 
make  a  complete  apparatus  for  manufacturing  liquor,  could 
use  a  photograph  for  that  purpose,  as  well  as  a  diagram, 
having  testified  that  the  protograph  was  an  accurate  pic- 
ture of  the  implements  found  in  defendant's  house. 
State  v.  Jones,  174  N.  C.  709,  95  S.  E.  576. 

Telephone  Arrangement. — In  a  prosecution  for  sell- 
ing and  keeping  on  hand  liquor,  contracts  for  a  telephone 
in  the  place  in  question,  one  signed  by  accused  and  the 
other  by  a  third  person,  were  properly  admitted  in  evidence, 
the  latter  contract  being  but  a  continuance  of  the  former 
for  the  same  place  and  telephone. 

Brooks  v.  State,  19  Ga.  App.  3,  90  S.  E.  989. 


TITLE  II— SEC.  33  OF  ACT  395 

14.  CHARACTER  OF  DEFENDANT'S  BUSINESS. 

Character  of  Defendant's  Business.— In  prosecu- 
tions, illegal  selling  or  engaging  in  the  business  of  selling, 
it  is  competent  to  show  that  such,  in  fact,  is  the  character 
of  the  defendant's  business. 

State  v.  Moore,  166  N.  C.  284,  81  S.  E.  294. 
State  v.  Seaborn,  116  N.  C.  373,  81  S.  E.  687. 

The  question  asked  of  a  witness  by  the  state,  on  prosecu- 
tion for  engaging  in  the  business  of  selling  liquor,  as  to  what 
business  defendant  was  engaged  in,  is  relevant  to  show 
that  defendant  was  not  a  druggist,  within  the  exception  to 
the  statute  declaring  it  unlawful  to  engage  in  such  business. 
State  v.  Moore,  166  N.  C.  284,  81  S.  E.  294. 

On  a  trial  for  selling  intoxicating  liquor  to  a  detective 
posing  as  a  whisky  drummer,  evidence  that  the  person  who 
accompanied  the  detective  to  defendants'  place  introduced 
him  to  defendants  as  a  whisky  drummer  and  said  he  could 
take  some  orders  was  not  hearsay,  but  was  admissible  as 
tending  to  show  that  defendants  were  engaged  in  the  liquor 
traffic. 

State  v.  Seahorn,  166  N.  C.  373,  81  S.  E.  687. 

Character  and  Reputation  of  Place. — Where  the  evi- 
dence discloses  the  possession  of  intoxicating  liquors  in  a 
place  of  public  resort  fitted  up  with  all  the  fixtures  and  ap- 
purtenances of  a  liquor  saloon,  the  general  reputation  of 
such  place  as  a  place  where  intoxicating  liquors  are  kept  for 
sale,  is  admissible  on  the  question  of  intent;  the  crime 
charged  being  the  unlawful  possession  of  intoxicating  liq- 
uors with  intent  to  sell  the  same. 

Ward  v.  State  (Okla.  Cr.  App.),  175  Pac.  557. 

Davis  v.  State  (Okla.  Cr.  App.),  182  Pac.  908. 

Caffee  v.  State,  11  Okla.  Cr.  App.  263,  145  Pac.  499. 

In  prosecution  for  maintaining  an  unlawful  drinking  place 
it  being  shown  accused  was  the  owner  and  occupant  of  the 
place,  evidence  tending  to  show  the  character  of  the  place 
is  admissible. 

Martin  v.  State  (Ala.  App.),  78  So.  322. 

But  on  a  trial  on  an  information  charging  that  the  defend- 
ant did  have  the  possession  of  intoxicating  liquors  with  the 


396  TITLE  II— SEC.  33  of  ACT 

intent  to  sell  the  same,  evidence  of  the  general  reputation  of 
his  home  was  incompetent  to  prove  the  charge. 

Brokhaus  v.  State,  11  Okla.  Cr.  App.  625,  150  Pac.  510. 

Place  Frequented  by  Persons  Desiring  to  Purchase 
Liquor;  Persons  Bringing  Liquor  Away,  etc. — That 
people  in  the  community  desiring  to  purchase  beer  and  other 
intoxicating  and  prohibited  liquors  frequented  accused's 
place  is  an  evidentiary  fact  tending  to  prove  the  corpus 
delicti. 

Martin  v.  State  (Ala.  App.),  78  So.  322. 

And  it  was  not  error  to  permit  a  witness  to  testify  that  he 
"had  seen  others  go  to  the  place  of  business  of  defendant 
and  come  away  with  whisky."  This  evidence  was  not  a 
conclusion,  but  the  statement  of  a  fact,  which  was  clearly 
admissible  as  a  circumstance  corroborative  of  other  evidence 
in  the  case. 

Reddick  v.  State,  15  Ga.  App.  437,  83  S.  E.  675. 

Gary  v.  State,  7  Ga.  App.  502,  67  S.  E.  207. 

Bonner  v.  State,  2  Ga.  App.  711,  58  S.  E.  1123. 

Cole  v.  State,  120  Ga.  485,  48  S.  E.  156. 

Otiinn  v.  State,  22  Ga.  App.  632,  97  S.  E.  84. 

In  another  case  the  evidence  objected  to  tended  to  char- 
acterize the  place  as  a  resort  for  persons  having  no  visible 
business  there  and  it  was  held  that  this,  in  connection  with 
other  testimony,  not  objected  to,  that  the  dwelling  house  in 
which  the  respondent  was  alleged  to  have  sold  and  furnished 
intoxicating  liquor,  was  away  from  the  main  street,  and  had 
a  well-beaten  path  to  it  in  the  rear  and  in  front  of  it,  had  a 
tendency  to  make  it  more  probable  that  the  persons  going 
there  were  in  pursuit  of  the  same  object  that  the  evidence  of 
the  state  tended  to  show  induced  others  to  go  there.  It  was 
a  circumstance  to  be  weighed  by  the  jury,  and  was  within 
the  wide  latitude  allowed  in  the  reception  of  circumstantial 
evidence  in  criminal  cases.  State  v.  Ryder,  80  Vt.  422,  68 
Atl.  652.  It  was  said  in  this  case  that  the  state's  attorney 
evidently  tried  the  case  on  the  theory  that,  if  he  failed  to  es- 
tablish a  sale  of  intoxicating  liquor  at  the  dwelling  house 
of  the  respondent,  he  might  be  able  to  prove  that  it  was  fur- 
nished at  that  place,  and  hold  the  respondent  liable  there- 
for because  of  her  house  becoming  a  place  of  public  resort; 


TITLE  II— SEC.  33  OF  ACT  397 

and  that  though  he  failed  to  make  out  such  a  case  as  justi- 
fied the  court  below  in  submitting  that  question  to  the  jury, 
it  nevertheless  did  not  make  the  reception  of  that  evidence 
reversible  error. 

State  v.  Avicolli  (Vt),  102  Atl.  1037,  1038. 

But  testimony  that  various  persons  were  seen  to  go  at 
different  intervals  at  night  from  a  neighboring  house,  where 
an  entertainment  was  in  progress,  to  the  house  of  the  ac- 
cused, shut  the  door,  and  remain  some  time,  was  not  ad- 
missible; there  being  no  evidence  that  any  liquor  was  sold 
in  that  house  on  the  occasion  referred  to. 

Holmes  v.  State,  12  Ga.  App.  359,  77  S.  E.  187. 

And  where  accused  charged  with  selling  intoxicating  liq- 
uor sought  to  show  that  he  served  the  liquor  to  his  guests, 
evidence  as  to  persons  not  going  to  the  place  where  the  liq- 
uor was  received  unless  invited  by  accused  was  properly  ex- 
cluded in  the  absence  of  any  reference  as  to  the  time  when 
persons  did  not  enter  the  place  unless  invited. 

People  v.  Sue  Chung  Kee,  26  Cal.  App.  732,  148  Pac. 
529. 

Drinking  and  Presence  of  Drunken  Persons  on 
Premises. — In  a  prosecution  for  illegally  storing  intoxi- 
cating liquor,  or  for  keeping  intoxicating  liquors  for  unlaw- 
ful sale,  it  is  competent  for  the  state  to  show  that  certain 
persons  were  seen  on  the  place  drinking  intoxicants  or  that 
other  persons  were  seen  going  to  defendant's  place  sober 
and  coming  away  intoxicated ;  especially  when  such  evidence 
is  limited  to  the  purpose  of  showing  the  intoxicating  char- 
acter of  the  liquor  kept  by  the  defendant. 

Frey  v.  Commonwealth,  169  Ky.  528,  184  S.  W.  896. 
People  v.  Calliari,  1%  Mich.  475,  163  N.  W.  154,  155. 

And  in  a  prosecution  for  the  unlawful  sale  of  intoxicants 
it  is  competent  for  the  state  to  show  that  various  people  had 
been  seen  on  defendant's  premises  drinking  and  in  an  in- 
toxicated condition. 

State  v.  Ceresa  (Vt),  102  Atl.  1040. 

State  v.  Pierce,  88  Vt.  277,  92  Atl.  218. 

Medlock  v.  State,  79  Tex.  Cr.  App.  322,  185  S.  W.  566. 

Stramler  v.  State,  15  Ala.  App.  600,  74  So.  727. 

Herman  v.  State,  125  Ark.  278,  188  S.  W.  541. 


398  TITLE  II— SEC.  33  OF  ACT 

Evidence  that  one  of  the  persons  to  whom  accused  was 
charged  with  selling  liquor  was  seen  drinking  and  under  the 
influence  of  intoxicants  at  the  house  of  accused,  is  admissi- 
ble. 

State  v.  Pierce,  88  Vt.  277,  92  Atl.  218. 

Evidence  that  those  attending  defendant's  dance  hall 
made  much  noise  in  the  middle  of  the  night  and  were  under 
the  influence  of  liquor  is  competent. 

Medlock  v.  State,  79  Tex.  Cr.  App.  322,  185  S.  W.  566. 

That  drunken  persons  were  seen  in  defendants'  place  of 
business  may  be  shown  on  a  prosecution  for  illegal  sales  of 
liquor. 

Herman  v.  State,  125  Ark.  278,  188  S.  W.  541. 

Testimony  of  a  witness  for  the  state  that  he  was  in  re- 
spondent's house  with  another  witness  for  the  state  and  an- 
other and  saw  respondent  there  and  had  some  whisky  there 
that  day,  but  did  not  know  who  brought  it  out  or  who  had 
called  for  it,  and  that  the  others  were  drinking,  in  connec- 
tion with  the  testimony  of  the  other  witness  for  the  state, 
was  material  as  tending  to  show  respondent's  guilt. 
State  v.  Ceresa  (Vt),  102  Atl.  1040. 

Where  the  evidence  against  the  defendant  was  purely  cir- 
cumstantial, it  was  competent  to  show  that  liquor  was  sold 
at  defendant's  residence  by  defendant's  daughter,  and  that 
people  had  gone  in  the  direction  of  defendant's  house  sober 
and  come  away  from  there  drunk;  and  evidence  tending  to 
show  that  this  condition  of  affairs  had  existed  continuously 
for  a  period  beyond  the  statutory  limitation  and  up  to  the 
time  of  the  indictment,  or  within  the  period  covered  by  the 
indictment,  was  admissible. 

Allison  v.  State,  1  Ala.  App.  206,  55  So.  453. 

Lane  v.  Tuscaloosa,  12  Ala.  App.  599,  67  So.  778. 

Snider  v.  State,  59  Ala.  64. 

Stramler  v.  State,  15  Ala.  App.  600,  74  So.  727. 

But  in  a  prosecution  for  an  unlawful  sale  of  such  liquors 
at  the  residence  of  the  accused  in  a  small  village,  proof  of 
disorderly  or  riotous  conduct  by  intoxicated  persons  assem- 
bled or  passing  along  a  public  street  in  front  of  but  not  upon 


TITLE  II— SEC.  33  OF  ACT  399 

his  premises  is  inadmissible,  unless  the  testimony  discloses 
some  immediate  or  causal  connection  between  such  conduct 
and  the  unlawful  possession  or  sale  of  liquors  by  the  ac- 
cused, or  facts  from  which  such  relation  may  reasonably  be 
inferred. 

State  v.  Tincher,  81  W.  Va.  441,  94  S.  E.  503. 

In  a  prosecution  for  maintaining  a  liquor  nuisance,  where 
there  was  no  dispute  as  to  the  business  carried  on  by  defend- 
ant and  his  partner,  no  issue  as  to  defendant's  want  of 
knowledge  or  whether  witness  operating  shop  next  door  ob- 
tained intoxicants,  such  witness  was  properly  not  permitted 
to  state  whether  he  had  observed  any  whisky  sales,  drink- 
ing, or  congregating  on  the  premises,  or  whether  he  at- 
tempted to  purchase  whisky  and  was  refused. 
State  v.  Fountain  (la.),  168  N.  W.  285. 

Flight  of  Customers  upon  Approach  of  Officers. — 
Where  a  deputy  sheriff  testified  that  he  discovered  a  bar  in 
operation  in  plaintiff's  place  of  business,  testimony  that  the 
customers  fled  upon  his  approach,  leaving  only  accused,  is 
admissible  in  a  prosecution  for  the  maintenance  of  an  un- 
lawful drinking  place,  for  the  action  of  the  crowd  was  part 
of  an  occurrence  in  which  accused,  was  a  participant ;  their 
acts  being  part  of  the  res  gestce  and  tending  to  show  that 
the  drinking  place  was  unlawful. 

Kirk  v.  State,  10  Ala.  App.  216,  65  So.  195. 

That  Officers  Were  Waiting  or  Watching  because 
They  Had  "Been  Told,"  or  "Had  Heard,"  etc.— In  a 

prosecution  for  carrying  on  the  business  of  a  retail  dealer 
without  having  paid  the  special  tax  therefor,  it  was  prejudi- 
cial error  to  permit  the  prosecuting  witness  on  direct  ex- 
amination to  testify  that  he  undertook  to  buy  liquor  from 
defendant  because  he  had  been  told  that  defendant  was  sell- 
ing. In  such  cases  as  this,  no  doubt  the  presence  or  absence 
of  any  previous  sale  is  a  relevant  fact  to  be  proved  one  way 
or  the  other  by  witnesses  competent  to  speak ;  but  this  may 
not  be  done  by  hearsay. 

Biandi  v.  United  States  (C.  C.  A.),  259  Fed.  93. 

The  proof  that  the  officers  were  waiting  at  the  point  where 
the  arrest  was  made,  because  they  had  been  told  that  liquor 


400  TITLE  II— SEC.  33  OF  ACT 

was  to  be  brought  in  by  some  one,  was  not  an  attempt  to 
prove  the  guilt  of  these  defendants  by  hearsay  testimony, 
within  the  principle.  Biandi  v.  United  States  (C.  C.  A.), 
259  Fed.  93,  opinion  filed  February  5,  1919. 

Robilio  v.  United  States  (C.  C.  A.),  259  Fed.  101. 

15.  REPUTATION  AS  SELLER  OF  INTOXICANTS. 

On  a  trial  for  selling  intoxicating  liquors,  evidence  of  the 
reputation  of  the  accused  in  the  community  relative  to  sell- 
ing whisky  is  not  admissible,  as  the  only  fact  that  his  repu- 
tation would  have  a  tendency  to  prove  would  be  his  charac- 
ter, and  the  character  of  accused  cannot  be  gone  into  until 
he  puts  it  in  issue. 

State  v.  Peters,  142  La.  249,  76  So.  702. 

Likewise,  it  is  error  to  permit  a  witness  to  state  that  he 
had  heard  people  say  that  they  believed  accused  was  selling 
whisky. 

Sasser  v.  State,  73  Tex.  Cr.  App.  539,  166  S.  W.  1160. 

In  a  search  and  seizure  proceeding;  it  is  improper  to 
permit  the  state  to  show  that,  before  issuance  of  the  search 
warrant,  defendant  had  more  than  once  been  arrested  for 
violation  of  the  prohibition  laws. 

Cheek  v.  State,  3  Ala.  App.  646,  57  So.  108. 

But  it  was  proper  to  allow  testimony  as  to  a  conversation 
between  the  accused  and  the  witness,  prior  to  a  preceding 
sale,  as  to  where  the  witness  might  obtain  liquor,  to  remain 
in  evidence,  as  tending  to  prove  defendant  was  dealing  in 
liquors  and  the  subsequent  sale  by  the  accused  to  the  wit- 
ness. 

Ragan  v.  State,  9  Ga.  App.  871,  72  S.  E.  441. 

And  where  the  prosecution  is  a  penal  action  under  Ky. 
St.  2569b,  for  knowingly  delivering  intoxicating  liquor  in- 
tended for  sale,  evidence  of  the  reputation  of  the  consignee 
as  an  illicit  vender  of  intoxicating  liquors  is  admissible. 

American  Exp.  Co.  v.  Commonwealth,  171  Ky.  1,  186 

S.  W.  887. 


TITLE  II— SBC.  33  OF  ACT  401 

Where  Accused  Puts  His  Character  in  Evidence.— 

Where  accused  has  put  his  character  in  issue  by  offering 
witnesses  of  his  good  character,  it  is  permissible  to  ask  wit- 
nesses if  they  have  not  heard  that  the  defendant  had  the 
reputation  of  being  a  "bootlegger,"  or  if  they  had  not  heard 
that  he  had  been  convicted  for  violation  of  the  law  in  this 
respect. 

Stout  v.  State,  15  Ala.  App.  206,  72  So.  762. 

Testimony  that  one  has  the  reputation  of  being  a  boot- 
legger is  not  a  conclusion,  but  a  statement  of  fact. 

Medlock  v.  State,  79  Tex.  Cr.  App.  322,  185  S.  W.  566. 

In  a  prosecution  under  the  search  and  seizure  law  for 
having  in  his  possession  intoxicating  liquors  with  intent  to 
sell  them,  the  sheriff  who  testified  on  cross-examination  that 
accused's  character  was  good  except  that  he  would  drink, 
might  properly  on  redirect  examination  be  examined  as  to 
whether  accused's  character  was  not  bad  with  respect  to  the 
illegal  selling  of  intoxicants. 

State  v.  Cathey,  170  N.  C.  794,  87  S.  E.  532. 

The  reply  of  the  sheriff  to  such  question  that,  "It  is  bad 
for  dealing  in  liquor,"  was  properly  admitted. 
State  v.  Cathey,  170  N.  C.  794,  87  S.  E.  532. 
State  v.  Butler  (N.  C.),  98  S.  E.  821. 

"The  defendant  introduced  evidence  to  show  his  good 
character.  The  chief  of  police  of  Greensboro,  Horace 
Foushee,  witness  for  the  state,  was  asked  if  he  knew  the 
general  character  of  Walter  Butler,  and  replied  that  he  did. 
He  was  then  asked,  'What  is  it.'  The  witness  replied,  'It 
is  bad  for  selling  whisky.'  The  defendant's  counsel  objected 
to  the  answer  and  moved  that  it  be  stricken  out  as  incom- 
petent and  not  responsive  to  the  question.  This  the  court 
declined  to  do,  and  the  defendant  excepted.  This  is  the 
only  question  presented  by  the  appeal.  The  witness  doubt- 
less could  not  answer  broadly  that  the  defendant's  charac- 
ter was  bad.  He  was  on  oath,  and  it  was  competent  for 
him  to  state  of  his  own  motion,  as  he  did,  'It  is  bad  for  sell- 
ing whisky.'  He  doubtless  gave  the  only  answer  that  his 
conscience  permitted.  The  state  could  not  ask  whether  it 
was  bad  or  good  for  a  particular  offense,  but  the  witness  in 
—26 


402  TITLE  II— SEC.  33  OF  ACT 

the  interest  of  truth  could  qualify  his  answer  as  he  did. 
The  witness  could  not  say  that  the  defendant's  character 
was  good.  Doubtless  he  could  not  say  it  was  bad,  alto- 
gether. He  therefore  gave  the  only  answer  that  he  could. 
In  the  interest  of  the  administration  of  justice  and  in  the 
investigation  of  the  truth  of  the  charge  before  the  court, 
the  answer  could  not  be  stricken  out.  The  jury  were  en- 
titled to  the  information." 

State  v.  Butler  (N.  C),  98  S.  E.  821. 

In  Missouri,  however,  it  has  been  held  error  to  admit 
evidence  of  defendant's  reputation  as  a  violator  of  the  local 
option  law,  even  after  he  had  offered  evidence  of  his  good 
reputation  for  truth  and  veracity. 

State  v.  Lyons  (Mo.  App.),  215  S.  W.  484. 

Crime  of  Different  Nature. — On  the  trial  of  one  charged 
with  the  sale  of  intoxicating  liquor,  it  was  error  to  admit 
testimony  that  he  had  been  living  in  a  state  of  adultery  with 
a  named  woman. 

Holmes  v.  State,  12  Ga.  App.  359,  77  S.  E.  187. 

In  a  prosecution  for  violation  of  the  state  prohibitory 
laws,  evidence  that  defendant  was  the  keeper  of  a  house  of 
prostitution  was  inadmissible. 

Ryan  v.  People  (Colo.),  180  Pac.  84. 

Intoxication  of  Accused. — The  admission  of  testimony 
that  a  witness  had  seen  the  defendant  drunk  on  the  streets 
before  the  time  of  the  raid  was  held  not  to  require  the  grant 
of  a  new  trial.  The  fact  that  the  defendant  was  seen  in  the 
condition  at  least  established  her  familiarity  with  and  use 
of  intoxicants,  and  tended  to  corroborate  other  testimony 
as  to  the  presence  of  intoxicants  alleged  to  have  been  found 
in  her  room  and  their  ownership  by  her,  since  it  is  more 
reasonable  to  infer  that  a  drinking  person  would  keep  in- 
toxicants in  his  or  her  possession  than  one  unaccustomed  to 
their  use. 

Littleton  v.  State,  20  Ga.  App.  746,  93  S.  E.  230. 

16.  PROOF  OF  OTHER  SALES  BY  ACCUSED. 

The  rule  that  evidence  of  one  illegal  sale  of  intoxicating 


TITLE  II— SEC.  33  OF  ACT  403 

liquors  should  not  be  received  as  evidence  that  another  such 
sale  had  been  made  exists  only  where  the  sales  are  entirely 
distinct  transactions,  the  one  having  no  fair  tendency  to  es- 
tablish the  other,  and  not  where  the  testimony  tends  to  show 
that  defendant  habitually  kept  liquor  on  hand  for  the  pur- 
pose of  making  illegal  sales.  Especially  is  such  evidence  ad- 
missible to  show  guilty  knowledge,  intent,  acquiescence  or 
consent,  and  to  show  the  character  of  the  business  con- 
ducted by  the  accused. 

State  v.  Boynton,  155  N.  C.  456,  71  S.  E.  341. 

State  v.  Stanley,  38  N.  D.  311,  164  N.  W.  702. 

Sweatt  v.  State,  153  Ala.  70,  45  So.  588. 

State  v.  Gesell,  137  Minn.  41,  162  N.  W.  683. 

Rash  v.  State,  13  Ala.  App.  262,  69  So.  239. 

State  v.  Stanley,  38  X.  D.  311,  164  N.  W.  702. 

Sweatt  v.  State,  153  Ala.  70,  45  So.  588. 

State  v.  Busick,  90  Ore.  466,  177  Pac.  64. 

Elliott  v.  State,  19  Ariz.  1,  164  Pac.  1179. 

Vance  v.  State,  80  Tex.  Cr.  App.  197,  190  S.  W.  176. 

Hill  v.  State,  19  Ariz.  78,  165  Pac.  326. 

Rosenberg  v.  State,  5  Ala.  App.  196,  59  So.  366. 

State  v.  Lafargue,  141  La.  936,  75  So.  998. 

Spigener  r.  State,  11  Ala.  App.  296,  66  So.  896. 

Curry  v.  State,  117  Md.  587,  83  Atl.  1030. 

State  v.  Laymon  (S.  D.),  167  N.  W.  402,  403. 

Reddick  v.  State,  15  Ga.  App.  437,  83  S.  E.  675. 

State  v.  Winner,  153  N.  C.  602,  69  S.  E.  9. 

Allison  v.  State,  1  Ala.  App.  206,  55  So.  453. 

State  v.  Van  Vleet  (Minn.),  165  N.  W.  962. 

State  v.  Holland,  99  Wash.  645,  170  Pac.  332. 

Evidence  of  prior  sales  in  the  same  place  and  of  prior 
shipments  may  be  admitted  in  a  prosecution  for  the  crime 
of  bootlegging  in  order  to  show  purpose,  intent,  and  plan, 
and  when  the  defense  is  that  the  transaction  was  a  joint 
purchase  and  treat  and  not  a  sale. 

State  v.  Stanley,  38  X.  D.  311,  164  N.  W.  702. 

In  a  trial  for  unlawfully  selling  intoxicants,  evidence  of 
a  sale  at  a  time  other  than  charged  was  proper,  not  to  con- 
vict of  the  specific  sale,  but  as  tending  to  show  that  the 
specific  transaction  was  a  sale — that  defendant  was  a  seller 


404  TITLE  II— SEC.  33  OF  ACT 

and  not  a  mere  agent;  in  other  words,  as  shedding  light  on 
defendant's  bona  fides. 

Sweatt  v.  State,  153  Ala.  70,  45  So.  588. 

In  a  prosecution  for  unlawful  sale  of  intoxicants,  evi- 
dence of  other  like  sales  was  admissible  to  show  character 
of  business  done  by  accused,  etc. 

State  v.  Busick,  90  Ore.  466,  177  Pac.  64. 

In  a  prosecution  for  the  illegal  sale  of  intoxicating  liquors 
by  an  employee  of  defendant,  evidence  of  other  sales  of 
intoxicating  liquors  by  such  employee  both  before  and  after 
the  sale  charged  was  properly  admitted  to  show  knowledge, 
consent  and  acquiescence  in  the  sales  by  the  defendant. 
Elliott  v.  State,  19  Ariz.  1,  164  Pac.  1179. 

In  a  prosecution  for  pursuing  the  occupation  of  selling 
intoxicants  in  prohibition  territory,  persons  not  named  in 
the  indictment  were  properly  allowed  to  testify  that  they 
purchased  whisky  from  the  defendant. 

Vance  v.  State,  80  Tex.  Cr.  App.  197,  190  S.  W.  176. 

In  a  prosecution  for  selling  cider  found  to  be  intoxicating, 
evidence  that  defendant  had,  at  prior  times,  made  similar 
sales  was  properly  admissible  to  show  intent,  and  that  the 
cider  was  sold  in  the  usual  course  of  business. 
Hill  v.  State,  19  Ariz.  78,  165  Pac.  326. 

In  a  prosecution  for  the  illegal  sale  of  intoxicating  liq- 
uors by  an  employee  of  defendant,  although  a  conviction 
could  not  be  upon  other  sales,  evidence  of  other  sales  not 
personally  made  by  defendant  were  competent  to  show 
sclent er  or  knowledge  on  his  part ;  it  being  a  reasonable  and 
fair  inference  that  if  liquor  was  frequently  disposed  of  at 
his  place  of  business  he  must  have  known  of  it. 
Elliott  v.  State,  19  Ariz.  1,  164  Pac.  1179. 

In  a  prosecution  for  the  violation  of  the  prohibition  law 
by  an  employee  of  accused,  evidence  that  beer  and  whisky 
were  found  in  accused's  place  of  business,  and  that  other 
sales  had  been  made  when  he  was  present,  was  properly 
admitted,  where  the  court  limited  its  consideration  to  the 
question  of  accused's  connection  with  the  sale  charged. 
Rosenberg  v.  State,  5  Ala.  App.  196,  59  So.  366. 


TITLE  II— SEC.  33  OF  ACT  405 

Under  an  information  charging  defendant  with  keeping  a 
grog  or  tippling  shop  retailing  spirituous  and  intoxicating 
liquors  without  a  license,  evidence  of  sales  on  days  other 
than  that  named  in  the  affidavit  and  information  admissi- 
ble, since  the  offense  of  keeping  a  tippling  shop  is  continuous 
in  its  nature,  and  its  continuity  may  be  established  by  proof 
of  sales  on  every  day  within  the  period  during  which  it  con- 
tinues. 

State  v.  Lafargue,  141  La.  936,  75  So.  998. 

In  prosecution  for  having  possession  of  intoxicating  liq- 
uor with  intent  to  unlawfully  sell  it,  evidence,  confined  with- 
in reasonable  limits,  of  a  previous  breach  of  the  liquor  laws 
by  defendant,  was  admissible  with  regard  to  the  unlawful- 
ness of  her  possession  of  the  liquor  in  question. 
State  v.  O'Toole  (Me.),  108  Atl.  99. 

The  offense  of  having  possession  of  intoxicating  liquor 
with  intent  to  unlawfully  sell  it  being  in  its  nature  a  con- 
tinuing one,  sales  by  defendant  before,  after,  and  at  the 
time  of  the  alleged  keeping  might  have  been  shown  to  the 
limited  extent  of  shedding  light  upon  intent  to  sell  liquor 
in  question. 

State  v.  O'Toole  (Me.),  108  Atl.  99. 

The  one  who  sent  the  purchaser  for  the  whisky  may  also 
testify  that  he  sent  him  on  that  occasion,  that  the  purchaser 
went  into  the  defendant's  yard  and  after  a  short  time  came 
back  with  two  bottles  of  whisky,  and  that  he  had  sent  the 
same  purchaser  and  other  purchasers  to  defendant's  place 
on  similar  errands  at  other  times. 

Spigener  v.  State,  11  Ala.  App.  296,  66  So.  896. 

In  a  prosecution  under  an  indictment  charging  accused 
with  the  unlawful  sale  of  intoxicating  liquor  to  the  prose- 
cuting witness  at  defendant's  place  of  business,  evidence 
that  she  sold  such  liquor  at  her  home  to  other  persons  than 
the  prosecuting  witness,  was  admissible  to  show  that  her 
home  where  the  liquor  was  obtained  was  her  place  of  busi- 
ness, and  that  she  kept  liquor  for  sale  at  the  place  where 
the  prosecuting  witness  testified  he  bought  it. 
Curry  v.  State,  117  Md.  587,  83  Atl.  1030. 


406  TITLE  II — SEC.  33  OF  ACT 

In  a  prosecution  for  unlawful  sale  of  intoxicating  liquors, 
where  some  sales  would  be  lawful,  the  intent  could  not  be 
inferred  from  the  act,  and  it  was  proper  to  introduce  evi- 
dence of  other  violations  of  the  law  by  the  defendant  simi- 
lar to  that  charged. 

State  v.  Laymon  (S.  D.),  167  N.  W.  402,  403. 

Where  an  indictment  charged  the  defendant  with  keeping 
on  hand  intoxicating  liquor  at  his  place  of  business,  and  in 
another  count  with  the  sale  of  such  liquor  to  a  person  named, 
proof  that  on  the  days  alleged  in  the  indictment  and  in  the 
vicinity  of  his  place  of  business,  he  offered  to  sell  intoxicat- 
ing liquor  to  a  person  other  than  the  one  named  in  the  in- 
dictment, was  admissible  in  support  of  the  charge  of  keep- 
ing intoxicating  liquor  on  hand  at  his  place  of  business, 
since  it  was  a  circumstance  tending  to  show  that  he  had 
such  liquor  in  his  possession,  and  tended  to  corroborate  a 
witness  who  testified  that  the  defendant  kept  intoxicating 
liquor  on  hand  at  his  place  of  business,  though,  in  the  ab- 
sence of  evidence  connecting  the  offer,  or  the  person  to 
whom  it  was  made,  with  a  sale  of  liquor  by  the  defendant 
to  the  person  named  in  the  indictment  proof  of  the  offer 
would  not  be  admissible  for  the  purpose  of  establishing  the 
alleged  sale. 

Reddick  v.  State,  15  Ga.  App.  437,  83  S.  E.  675. 

Where  accused  was  prosecuted  for  selling  liquor  with- 
out a  license  by  means  of  a  dumb  waiter  in  a  cut-off  com- 
partment in  his  place  of  business  and  prosecutor  testified 
that,  having  made  known  his  presence  and  thirst  a  tin  cup 
appeared  in  a  hole  in  the  wall,  that  after  putting  money  in 
the  cup  it  disappeared  and  in  a  few  seconds  a  bottle  of 
whisky  appeared  the  state  was  entitled  to  show  by  an 
other  witness  in  corroboration  that  he  had  purchased  whisky 
at  the  same  place  by  means  of  the  same  device  prior  to  the 
purchase  by  prosecutor,  to  show  defendant's  knowledge  that 
the  illicit  traffic  was  being  carried  on  in  his  place  of  busi- 
ness. 

State  v.  Winner,  153  N.  C.  602,  69  S.  E.  9. 

Defendant  was  tried  on  an  affidavit  charging  that  he  sold, 
offered  for  sale,  kept  for  sale  or  otherwise  disposed  of, 
spirituous,  vinous,  or  malt  liquors  contrary  to  law,  or  sold, 


TITLE  II— SEC.  33  OF  ACT  407 

offered  for  sale,  kept  for  sale  prohibited  liquors  and  bev- 
erages contrary  to  law.  The  state  offered  evidence  that  de- 
fendant was  the  proprietor  of  a  hotel,  that  several  raids 
were  made,  and  on  several  occasions  whisky  and  beer  were 
found  there ;  that  on  one  of  the  raids  several  bottles  of  beer 
were  found  in  one  of  the  rooms  stored  in  an  ice  box,  one 
full  cask  of  beer  and  another  partly  filled  and  that  on  the 
same  occasion  some  whisky  was  taken  from  the  building, 
and  on  one  occasion  officers  seized  two  trunks  in  defend- 
ant's bedroom,  which  were  filled  with  whisky.  There  was 
other  evidence  that  on  one  occasion  a  deputy  sheriff  bought 
a  bottle  of  beer  from  a  negro  in  the  hotel,  and  on  another 
occasion  a  deputy  sheriff  went  into  the  dining  room  and 
saw  a  negro  waiting  on  the  diners,  who  heard  one  of  them 

say  to  the  negro.    "Why  in  the  don't  you  bring  those 

drinks?"  that  on  the  occasion  of  one  of  the  raids  a  deputy, 
after  whisky  and  beer  had  been  seized  and  taken  from  the 
building,  heard  defendant  say  to  another  deputy  that  he  had 
just  as  well  close  up,  that  we  had  put  him  out  of  business. 
Held,  that  since  in  the  affidavit  defendant  was  not  charged 
with  a  single  offense  but  with  many  offenses  of  the  same 
general  character,  all  of  the  evidence  was  relevant  as  tend- 
ing to  show  that  defendant  was  in  fact  keeping  prohibited 
liquors  for  sale  in  the  hotel,  and  that  he  was  operating  a 
blind  tiger. 

Allison  v.  State,  1  Ala.  App.  206,  55  So.  453. 

In  prosecution  for  selling  intoxicating  liquor,  evidence  of 
other  sales  in  defendant's  place  of  business,  near  time  of  the 
sale  charged,  was  competent  to  show  that  part  of  defend- 
ant's business,  in  connection  with  alleged  cigar  store,  was 
the  sale  of  whisky,  and  to  show  that  he  knew  of  them,  and 
that  liquors  were  intermingled  with  other  goods  as  tending 
to  show  that  particular  sale  was  a  part  of  defendant's  busi- 
ness. 

Bundy  v.  State  (Okla.  Cr.  App.),  184  Pac.  795. 

"Defendant  had  been  interested  in  the  soft  drinks  parlor 
at  which  this  alleged  illegal  sale  was  made  four  or  five  weeks 
prior  thereto.  He  denied  the  sale.  On  cross-examination 
he  was  asked  whether  he  had  ever  sold  whisky  to  Sorenson. 
the  prosecuting  witness.  Sorenson  was  called  in  rebuttal 
and  testified  over  defendant's  objection,  to  buying  whisky 


408  TITLE  II— SEC.  33  OF  ACT 

of  defendant  on  two  different  occasions  before  the  date  of 
the  sale  named  in  the  indictment.  This  was  not  impeach- 
ment on  a  collateral  issue;  whether  in  this  soft  drink  parlor 
defendant  kept  whisky  for  sale  had  an  important  bearing 
upon  the  sale  in  question.  The  time  of  these  other  sales 
was  not  too  remote,  having  in  mind  the  short  period  that 
defendant  had  been  connected  with  the  place.  In  the  charge 
the  effect  of  this  testimony  of  former  sales  was  quite  clearly 
and  correctly  limited." 

State  v.  Van  Vleet  (Minn.),  165  N.  W.  962. 

Unlawful  Sale  by  Druggist— Druggists'  Record  of 
Sales. — In  a  prosecution  of  defendant  druggist  for  violation 
of  prohibitory  law,  defendant's  record  of  sales,  other  than 
that  upon  which  information  was  based,  was  properly  ad- 
mitted upon  issue  of  defendant's  good  faith. 

State  v.  Holland,  99  Wash.  645,  170  Pac.  332. 

In  a  prosecution  for  violation  of  the  prohibition  law  by 
selling  Jamaica  ginger,  evidence  of  other  sales  than  the  one 
specifically  charged  was  admissible  under  an  information 
charging  defendant  with  selling  and  keeping  for  sale  in- 
toxicating liquor. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

To  Contradict  Accused. — Defendant  having  testified, 
on  direct  examination,  that  he  had  neither  sold  nor  manu- 
factured liquor,  he  could  not  complain  that  the  state  was 
allowed  to  contradict  him  by  evidence  showing  that  he  had 
sold  liquor. 

Lowery  v.  State,  135  Ark.  159,  203  S.  W.  838. 

Rumors  of  Sales;  Sales  Heard  of;  Statements  in 
Absence  of  Accused,  etc. — In  a  prosecution  for  having 
unlawful  possession  of  liquors,  cross-examination  as  to 
whether  witness  had  ever  heard  of  any  sales  of  liquor  at 
the  location  involved,  was  improper. 

State  v.  Billingsley,  99  Wash.  445,  169  Pac.  845. 

In  prosecution  for  maintaining  an  unlawful  drinking 
place,  statements  by  persons  in  accused's  absence  that  they 


TITLE  II— SEC.  33  OF  ACT  409 

had  been  getting  beer  before  at  accused's  place,  was  inad- 
missible as  hearsay. 

Martin  v.  State  (Ala.  App.),  78  So.  322. 

In  a  prosecution  for  carrying  on  the  business  of  a  retail 
liquor  dealer  without  having  paid  special  federal  tax,  the 
refusal  of  the  trial  court  to  allow  proffered  witnesses  to 
testify  as  to  whether  they  had  ever  heard  of  liquor  being 
sold  at  defendant's  place  of  business  cannot  be  held  error, 
where  the  record  did  not  disclose  the  opportunity  such  wit- 
nesses had  for  knowing  the  defendant's  reputation  or  the 
reputation  of  his  place  of  business. 

Faraone  v.  United  States  (C.  C.  A.),  259  Fed.  507. 

That  Persons  Came  in  and  Sought  to  Buy. — For  such 
purpose,  evidence  is  admissible  that,  when  officers  were 
making  a  raid  on  the  place,  several  soldiers  entered  and 
asked  to  buy  some  beer. 

Martin  v.  State  (Ala.  App.),  78  So.  322. 

17.  POSSESSION  OF  TAX  RECEIPT. 

Under  Acts  1911,  p.  180,  declaring  that,  in  a  prosecution 
for  the  unlawful  sale  of  intoxicating  liquors,  a  federal  in- 
ternal revenue  special  tax  receipt  for  the  sale  of  liquors 
shall  be  prima  facie  evidence  of  the  guilt  of  the  person  in 
possession  thereof,  or  who  made  application  therefor,  or  to 
whom  it  was  issued,  the  original  tax  receipt  found  in  the 
possession  of  accused  is  admissible,  for  the  statute  does 
not  require  the  state  to  procure  a  certified  copy,  and  such 
copy,  if  procured,  would  only  be  secondary  evidence. 

Haar  v.  State,  14  Ga.  App.  548,  81  S.  E.  811. 

In  a  prosecution  for  the  unlawful  transportation  of  in- 
toxicating liquor,  the  admission  of  the  certified  copy  of 
United  States  internal  revenue  collector's  register  of  tax- 
payers for  liquor  dealers  in  a  city,  showing  that  defendant 
had  paid  both  a  retail  and  wholesale  liquor  dealer's  tax,  was 
proper,  as  tending  to  rebut  his  testimony  that  he  was  con- 
veying the  liquor  for  other  parties. 

Smith  v.  State  (Okla.  Cr.  App.),  181  Pac.  942. 


410  TITLE  II— SEC.  33  OF  ACT 

In  a  prosecution  for  unlawfully  conveying  intoxicating 
liquors,  payment  of  a  retail  and  wholesale  liquor  dealer's 
internal  revenue  tax  in  the  name  of  "John  B.  Smith"  was 
sufficiently  identified  with  defendant,  where  he  testified  that 
his  true  name  was  "John  B.  Smith,"  and  authorized  admis- 
sion of  such  payment. 

Smith  v.  State  (Okla.  Cr.  App.),  181  Pac.  942. 

Near  Beer  License. — In  a  trial  under  an  indictment 
charging  a  violation  of  the  prohibitory  law  contained  in  sec- 
tion 426,  of  the  Penal  Code  of  1910,  evidence  that  at  the 
time  the  offense  is  alleged  to  have  been  committed  the  ac- 
cused had  a  license  to  sell  near  beer  from  the  state,  county 
and  municipal  corporation  in  which  the  law  is  alleged  to 
have  been  violated,  is  irrelevant. 

Abbott  v.  State,  11  Ga.  App.  43,  74  S.  E.  621. 

18.  PROOF  OF  INTOXICATING  CHARACTER  OF  LIQUOR. 

Chemical   Analysis    and    Testimony    of   Experts.— 

Testimony  of  experts  as  to  the  amount  of  alcohol  in  liquor 
sold  by  the  defendant,  as  shown  by  chemical  tests,  is  ad- 
missible on  prosecution  for  violation  of  the  prohibition  acts. 
Hall  v.  State  (Ariz.),  165  Pac.  300. 

And  where  the  defendant  showed  that  the  beer  sold  by 
him  was  the  same  as  that  sold  by  another,  samples  of  which 
were  tested  and  found  not  to  require  an  internal  revenue 
license,  the  state  may  show  that  chemists  had  it  analyzed 
and  found  it  intoxicating. 

Hall  v.  State  (Ariz.),  165  Pac.  300. 

Statutory  Provisions  for  Analysis  by  State  Chem- 
ist.— Under  the  Mapp  prohibition  law  (Acts  of  Va.,  1916. 
c.  146,  §  30y2),  making  it  the  duty  of  the  state  commis- 
sioner of  agriculture,  on  the  written  request  of  the  proper 
official,  to  cause  an  analysis  to  be  made  of  any  mixture  sup- 
posed to  contain  ardent  spirits,  and  to  return  to  the  offi- 
cer the  certificate  of  the  chemist  making  the  anlysis,  though 
only  the  certificate  of  the  chemist  is  made  evidence  by  the 
statute,  it  is  not  evidence  unless  the  commissioner  of  agri- 
culture caused  the  analysis  to  be  made,  nor  unless  he  also 


TITLE  II— SEC.  33  OF  ACT  411 

returned  the  chemist's  certificate  to  the  officer  who  requested 
the  analysis;  so  that,  in  a  prosecution  for  dispensing  cider, 
the  commissioner's  letter,  returning  the  state  chemist's  cer- 
tificate of  analysis  to  the  officer,  was  evidence,  and  so  much 
of  it  as  appeared  above  the  commissioner's  signature  not  to 
be  disregarded,  though  it  was  dated  December  5th,  while  the 
date  of  the  affidavit  of  the  chemist  was  December  15th,  a 
variance  which  should  have  been  explained. 

Bare  v.  Commonwealth,  122  Va.  783,  94  S.  E.  168,  169. 

The  Va.  Const.,  1902,  (Code  1904,  p.  ccix)  providing 
that  "in  all  criminal  prosecutions  a  man  hath  the  right  to  be 
confronted  with  the  accusers  and  witnesses,"  is  not  vio- 
lated by  the  "Byrd  Law"  (Acts  1908,  c.  189),  providing 
that  the  certificate  of  the  state  chemist  showing  an  analysis 
of  a  mixture  supposed  to  contain  alcohol,  when  signed  and 
sworn  to  by  him  "shall  be  evidence  in  all  prosecutions  un- 
der the  revenue  laws." 

Bracy  v.  Commonwealth,  119  Va.  867,  89  S.  E.  144. 

Opinion  Evidence. — The  drinking  of  whisky  is  so  com- 
mon an  occurrence  that  liquor  can  be  priina  facie  shown  to 
be  whisky  by  the  opinions  of  persons  accustomed  to  its  use. 
People  v.  Allen  (Cal.  App.),  174  Pac.  374. 

A  witness  for  the  state  may  testify  that  the  bottles  which 
he  found  in  defendant's  house  contained  whisky  without 
producing  the  bottles,  since  whisky  is  a  commodity  whose 
characteristics  are  matters  of  common  knowledge  and  of 
which  the  court  can  take  judicial  notice. 

Harwell  v.  State,  12  Ala.  App.  265,  68  So.  500. 

On  a  trial  for  carrying  intoxicating  liquor  into  prohibi- 
tion territory,  the  testimony  of  an  officer,  who  seized  the 
accused  and  the  liquor  which  he  had  carried  into  the  prohi- 
bition territory,  that  the  bottles  in  the  valise  contained 
whisky,  was  admissible. 

Johnson  v.  State,  75  Tex.  Cr.  App.  177,  171  S.  W.  211. 

A  farmer  of  average  intelligence,  who  had  resided  for 
years  on  a  farm  with  his  family  in  the  apple-growing  regions 
of  the  state  and  was  familiar  with  the  popular  terms  ap- 


412  TITLE  II— SEC.  33  OF  ACT 

plied  to  cider  in  its  process  of  aging,  was  competent  to  tes- 
tify whether  cider  drank  by  him  was  fermented. 

People  v.   Emmons,   178  Mich.   126,   144  N.  W.  479, 
Ann.  Cas.  1915D,  425. 

But  in  a  prosecution  for  having  violated  the  local  option 
law  by  selling  cider,  testimony  of  witnesses  that  40  or  50 
years  ago  in  Tennessee  and  Georgia  they  had  made  cider 
which  would  not  intoxicate  when  fresh,  but  would  if  it  be- 
came hard  cider,  was  inadmissible  as  irrelevant. 

Salvador  v.  State,  79  Tex.  Cr.  App.  343,  185  S.  W.  12. 

A  witness  who  testified  that  he  knew  the  difference  be- 
tween the  taste  of  whisky,  wine,  and  brandy  is  qualified,  if 
any  qualifications  as  an  expert  are  necessary  to  testify  that 
the  liquor  which  the  defendant  was  accused  of  selling  was 
wine. 

People  v.  Mueller,  168  Cal.  526,  143  Pac.  750. 

The  court  should  have  excluded  that  portion  of  the  tes- 
timony of  a  witness  to  the  effect  that  certain  bottles  seen 
by  him  contained  intoxicating  liquors,  because  where  it 
was  evident  from  the  answer  of  the  witness  that  he  was 
merely  expressing  his  opinion ;  but  in  view  of  the  conclusive 
nature  of  the  competent  evidence  in  the  record,  which  sup- 
ported the  opinion  of  the  witness,  this  error  was  deemed 
immaterial. 

Gales  v.  State,  14  Ga.  App.  450,  81  S.  E.  364. 

Color,  Taste,  Odor,  Appearance,  etc. — Testimony 
that  the  beverage  found  had  a  color  like  whisky,  in  connec- 
tion with  testimony  that  the  bottles  were  labeled  "whisky," 
and  that  there  was  an  odor  of  whisky  in  the  place,  is  ad- 
missible on  a  prosecution  for  violation  of  the  prohibition 
law. 

Woodward  v.  State,  5  Ala.  App.  202,  59  So.  688. 

In  a  prosecution  for  engaging  in  the  business  of  a  retail 
liquor  dealer  in  violation  of  the  prohibitory  law,  evidence 
having  been  introduced  to  prove  that  defendant  paid  for  a 
government  license  covering  the  place  and  period  of  time 
involved  in  the  charge  against  him,  and  authorized  by  Acts 
Sp.  Sess.  1909,  pp.  63,  84,  §  221^  and  that  his  place  of 


TITLE  II— SEC.  33  OF  ACT  413 

business  within  such  time  emitted  the  odor  of  a  barroom, 
it  was  permissible  to  prove  that  the  beverage  sold  by  de- 
fendant had  the  color  of  whisky  or  of  beer. 

Warrick  r.  State,  8  Ala.  App.  391,  62  So.  342. 

"In  a  prosecution  for  selling  and  keeping  on  hand  liquor, 
a  witness'  testimony  that  he  bought  something  that  looked 
like  whisky  was  admissible." 

Brooks  v.  State,  19  Ga.  App.  3,  90  S.  E.  989. 

A  witness  may  testify  that  he  smelled  and  tasted  liquor 
and  that  it  was  alcohol. 

Feagin  v.  Andalusia,  12  Ala.  App.  611.  67  So.  630. 

But  while  evidence  that  a  beverage  has  the  color,  odor, 
and  general  appearance  of  whisky,  for  instance,  or  that  it 
has  the  taste,  color,  and  general  appearance  of  beer,  has 
some  tendency  to  prove  that  it  is  a  prohibited  liquor  with- 
in the  meaning  of  the  statute,  it  cannot  be  said  that  proof 
of  the  mere  color  of  a  beverage  has  a  logical  or  legitimate 
tendency  to  identify  it  as  a  prohibited  liquor.  It  is  not  be- 
lieved that  it  is  within  the  intention  of  the  statute  to  per- 
mit one  to  be  convicted  of  an  offense  against  the  liquor 
laws  by  evidence  having  no  more  tendency  to  identify  a 
beverage  disposed  of  by  him  as  whisky  than  it  has  to  iden- 
tify it  as  tea.  It  is  a  matter  of  common  knowledge  that 
evidence  going  no  further  than  to  show  that  a  beverage 
looks  like  liquor,  does  not  legitimately  tend  to  show  that  it 
is  in  fact  a  prohibited  liquor. 

\Yright  v.  State,  4  Ala.  App.  150,  58  So.  803. 

Intoxicating1  Effect. — The  state's  witness  may  properly 
testify  to  the  intoxicating  effect  of  the  liquor  purchased. 
Marks  v.  State,  159  Ala.  71,  48  So.  864,  133  Am.  St. 

Rep.  20. 

Brantly  v.  State,  91  Ala.  17.  8  So.  816. 
Carl  v.  State.  87  Ala.  17,  6  So.  118,  4  L.  R.  A.  380. 
Knowles  v.  State,  80  Ala.  9. 
Johnson  v.  State,  3  Ala.  App.  155,  57  So.  499. 

"\Yhen  any  drink  alleged  to  be  intoxicating  is  sold  in 
labeled  bottles,  as  put  up  by  the  manufacturer,  and  has  a 
commercial  name  or  designation,  the  evidence  of  persons 


414  TITLE  II— SEC.  33  OF  ACT 

who  have  purchased  it  from  the  defendant  and  drunk  it, 
whether  at  the  same  time  or  on  different  days  and  occasions 
as  to  whether  it  is  intoxicating  is  admissible  both  for  the 
state  and  the  defendant. 

State  v.  Cool,  66  W.  Va.  86,  66  S.  E.  740. 

Thus  where  a  particular  beverage,  sold  under  a  trade- 
name,  to  the  trade  generally,  was  claimed  to  be  intoxicat- 
ing, evidence  of  its  intoxicating  effects  when  sold  at  other 
places  than  that  of  accused  charged  with  the  illegal  sale  of 
intoxicating  liquors  was  admissible  after  a  foundation  had 
been  laid  by  proof  that  the  beverage  sold  at  such  other 
places  was  manufactured  and  sold  to  the  trade  generally  by 
the  same  concern  that  manufactured  the  beverage  sold  by 
defendant,  and  that  it  was  of  the  same  brand  and  in  the 
same  condition  in  which  it  was  received  from  the  manu- 
facturer. 

State  v.  Clark,  124  La.  965,  50  So.  811. 

On  the  trial  of  a  defendant  charged  with  selling  intoxi- 
cating liquor  within  a  prohibited  territory,  the  article  sold 
being  a  liquid  put  up  in  labeled  bottles,  which  defendant 
received  packed  in  barrels,  purporting  on  the  labels  to  be 
nonintoxicating,  and  not  shown  to  be  a  distilled,  malt,  or 
vinous  liquor,  where  the  prosecution  introduced  witnesses 
who  testified  that  the  contents  of  some  of  the  bottles  drank 
by  them  had  an  intoxicating  effect,  defendant  was  entitled 
to  show  by  other  witnesses  that  the  contents  of  other  bot- 
tles similarly  labeled  and  from  the  same  barrel,  which  they 
drank,  had  no  effect  upon  them ;  the  weight  of  such  evidence 
being  for  the  jury. 

Cihak  v.  United  States,  146  C.  C.  A.  509,  232  Fed.  551. 

In  a  prosecution  for  manufacturing  alcoholic  liquors,  tes- 
timony that  a  short  time  before  the  accused  was  arrested, 
and  while  a  keg  of  "Choc"  beer  was  in  her  house,  a  negro 
man  came  out  of  the  house  with  "Choc"  beer,  which  he 
sold  to  witnesses,  and  that  it  was  intoxicating,  was  compe- 
tent as  tending  to  show  that  the  "Choc"  beer  was  intoxi- 
cating. 

Patterson  v.  State  (Ark.),  215  S.  W.  629. 


TITLE  II— SEC.  33  OF  ACT  415 

Jamaica  linger.— In  a  prosecution  for  violating  the 
prohibition  law  by  selling  Jamaica  ginger,  any  evidence  as 
to  its  nature  and  constituent  elements,  its  ordinary  use,  its 
susceptibility  to  use  as  an  intoxicant,  and  the  extent  of  such 
use,  is  admissible  to  determine  whether  the  liquor  sold  is 
intoxicating  or  not. 

McLean  v.  People  (Colo.),  180  Pac.  676. 

Exhibiting  Actual  Liquor,  Containers,  etc.— The 
character  of  the  containers  and  their  contents  is  a  relevant 
and  material  fact  which  the  jury  may  properly  determine 
from  an  actual  inspection  of  such  containers  and  their  con- 
tents. It  is  proper,  therefore,  for  the  court  to  permit,  in 
connection  with  other  evidence,  the  introduction  of  the  ac- 
tual liquor  itself  in  evidence. 

Clark  v.  State,  5  Ga.  App.  605,  63  S.  E.  606. 

State  v.  Sullivan,  97  Wash.  639,  166  Pac.  1123. 

Thomas  v.  State,  13  Ala.  App.  246,  68  So.  799. 

Where  on  a  trial  for  carrying  into  prohibition  territory 
intoxicating  liquor,  there  was  evidence  that  a  valise  con- 
taining whisky  was  the  property  of  accused,  and  that  he 
had  transported  the  same  into  prohibition  territory  from  a 
point  in  the  state,  the  action  in  the  court  in  allowing  the 
district  attorney  to  open  the  valise  in  the  presence  of  the 
jury,  and  to  introduce  it  and  the  whisky  contained  therein 
in  evidence  was  proper. 

Johnson  v.  State,  75  Tex.  Cr.  App.  177,  171  S.  W.  211. 

But  permitting  the  state  to  exhibit  one  by  one  sixteen 
bottles  of  whisky  in  the  presence  of  the  jury,  after  defend- 
ant had  admitted  every  material  and  admissible  fact  that 
could  have  been  established  by  the  exhibition  of  the  whisky, 
was  error.  (Per  Gaines,  Special  Judge.) 

Alexander  v.  State  (Tex.  Cr.  App.),  204  S.  W.  644, 
645. 

Where,  in  a  case  involving  the  question  as  to  whether  a 
certain  liquid  is  an  intoxicating  liquor,  the  state  introduces 
in  evidence  the  liquor  itself,  it  is  proper  for  the  court  to 
instruct  the  jury  that  they  may  make  personal  inspection 
of  the  liquid,  may  apply  their  own  senses  to  it,  may  look 


416  TITLE  II— SEC.  33  OF  ACT 

at  it,  taste  of  it,  and  thereby  determine  whether  it  is  or  is 
not  an  intoxicating  liquor,  subject  to  the  limitation  that  they 
must  not  drink  such  a  quantity  as  that,  if  it  were  intoxi- 
cating liquor,  it  would  make  them  drunk. 

Morse  v.  State,  10  Ga.  App.  61,  72  S.  E.  534. 

And  a  compliance  with  a  request  of  the  jury  that  bottles 
of  liquor  in  evidence  should  be  sent  to  the  jury  room  is 
held  not  to  afford  sufficient  grounds  for  reversal. 

State  v.  Watson,  92  Kan.  983,  142  Pac.  956. 

Proving  Liquor  to  Be  Same  That  Accused  Sold  or 
Possessed. — It  is  not  error  to  refuse  to  permit  a  witness 
to  taste  the  contents  of  a  bottle  to  see  if  they  are  the  same 
as  the  contents  of  another  bottle  purchased  from  the  ac- 
cused by  the  witness. 

State  v.  Trione,  97  Kan.  365,  155  Pac.  29. 

Where  the  liquor,  defendant  was  accused  of  selling,  was 
taken  out  of  a  box  in  a  basket,  evidence  that  the  basket  con- 
taining the  box  and  bottles  was  afterwards  examined  on  the 
same  day  and  found  to  contain  11  bottles  of  whisky,  was 
admissible  on  an  issue  as  to  the  contents  of  the  bottle  sold. 

Berry  v.  State  (Tex.  Cr.  App.),  203  S.  W.  901. 

That  the  officer  who  found  whisky  in  a  bucket  in  ac- 
cused's place  of  business  poured  it  into  a  large  bottle,  be- 
cause he  thought  the  bucket  might  overturn,  would  not  ex- 
clude the  whisky  as  evidence  in  a  prosecution  for  unlaw- 
fully keeping  liquor  for  sale,  when  offered  in  the  bottle  to 
prove  that  the  contents  of  the  bucket  was  whisky. 

State  v.  Mostella,  159  N.  C.  459,  74  S.  E.  578. 

The  fact  that  other  employees  had  keys  to  a  lock  box  in 
which  a  bottle  of  whisky  sold  by  defendant  was  being  kept 
by  the  deputy  sheriff  as  an  exhibit,  was  insufficient  to  de- 
prive it  of  all  evidentiary  force,  where  the  deputy  sheriff 
identified  the  bottle,  and  testified  that  he  frequently  went 
to  the  lock  box,  and  that  the  bottle  was  always  in  appar- 
ently the  same  condition. 

State  v.  Hays,  38  S.  D.  546,  162  N.  W.  311. 


TITLE  II— SEC.  33  OF  ACT  417 

Marks  and  Labels  as  Evidence. — In  a  prosecution  for 
the  illegal  sale  of  liquor,  labels  on  boxes  and  barrels  re- 
ceived by  defendant  from  a  common  carrier  were  some 
evidence  of  the  contents  thereof. 

Hodge  v.  State,  11  Ala.  App.  185,  65  So.  676. 

Evidence  that  packages  delivered  by  an  express  com- 
pany to  defendant  were  billed  and  marked  "whisky"  was 
some  evidence  that  they  contained  whisky. 

Herring  v.  State,  11  Ala.  App.  202,  65  So.  707. 

Permitting  a  state's  witness,  who  engaged  in  the  search 
of  defendant's  store  to  identify  bottles  labeled  "gin"  and 
"whisky"  as  those  found  in  such  store,  was  proper,  since  an 
ordinary  trade  label  on  an  article  for  the  purpose  of  indi- 
cating its  nature  and  contents  is  competent  evidence  there- 
of, as  against  the  person  in  possession,  the  inference  as  to 
the  contents  being  a  question  of  fact  for  the  jury. 
Thomas  v.  State,  13  Ala.  App.  246,  68  So.  799. 

In    defense    of    an  indictment    for    selling    intoxicating 
drinks  the  article  sold  being  labeled  "Temperance  Beer,"  the 
defendant  has  right  to  show  that  it  is  not  intoxicating. 
State  v.  Durr,  69  W.  Va.  251,  71  S.  E.  767,  46  L.  R.  A., 
N.  S.,  764. 

But  where  the  prosecution  is  for  introducing  liquors  into 
the  state,  and  the  sole  defense  is  that  accused  received  it 
within  the  state,  labels  and  internal  revenue  stamps  show- 
ing the  liquor  to  be  whisky  and  time  and  place  of  bottling 
the  same,  are  inadmissible. 

Murray  v.  State,  19  Ariz.  49,  165  Pac.  315. 

Self -Serving  Declarations  as  to  Character  of  Liq- 
uor.— In  prosecution  for  selling  intoxicating  liquors,  dec- 
larations of  defendant  that  he  had  emptied  the  whisky  out 
of  a  bottle,  and  that  it  contained  cider  when  sold,  were  in- 
admissible, being  self-serving. 

Berry  v.  State  (Tex.  Cr.  App.),  203  S.  W.  901. 

Improper  Cross-Examination. — Where  county  attor- 
ney testified  that  he  received  a  pint  bottle  from  prosecuting 
witness;  that  the  next  morning  the  defendant  came  in  and 

—27 


418  TITLE  II— SEC.  33  OF  ACT 

told  him  that  if  he  would  open  the  bottle  he  would  find  it 
was  not  whisky;  that  when  he  looked  he  found  it  was 
broken,  and  the  liquor  spilled  smelled  like  cider — an  effort 
to  prove  on  cross-examination  that  defendant  told  him  he 
had  emptied  out  the  whisky  and  put  in  cider  before  he  sold 
it,  was  not  germane  to  the  direct  examination,  and  an  ob- 
jection was  properly  sustained. 

Berry  v.  State  (Tex.  Cr.  App.),  203  S.  W.  901. 

19.  PROOF  OF  SOLICITATION  OF  ORDERS. 

Letters,  or  Copies  Thereof. — In  a  prosecution  for  so- 
liciting or  receiving  orders  for  liquors  the  sale  of  which  was 
then  prohibited,  a  letter  or  conceded  copy  thereof,  ordering 
a  nonresident  consignor  to  deliver  liquors  to  certain  persons 
in  city,  was  properly  admitted  in  connection  with  the  other 
evidence  as  to  defendant's  guilt. 

Flowers  v.  Birmingham  (Ala.  App.),  83  So.  36. 

In  action  for  violation  of  ordinance  by  soliciting  or  receiv- 
ing orders  for  liquors,  the  sale  of  which  is  prohibited  in  the 
state,  the  prosecution,  having  a  letter  purporting  to  be  an 
order  from  defendant  to  a  named  person  for  liquors  to  be 
sent  to  certain  persons  in  city,  obtained  by  witness  from  de- 
fendant's office  in  his  presence  under  a  search  warrant, 
might  show  that  person  addressed  was  engaged  in  liquor 
business  in  Chattanooga,  and  that  shortly  after  date  of  let- 
ter the  kind  and  quantity  of  liquors  referred  to  therein  were 
received  by  common  carriers,  billed  to  persons  named  there- 
in. 

Flowers  v.  Birmingham  (Ala.  App.),  83  So.  36. 

Records  of  Carrier. — In  prosecution  for  soliciting  or 
receiving  orders  for  liquors  the  sale  of  which  was  then  pro- 
hibited in  the  state,  defendant's  objection  "to  the  introduc- 
tion of  each  of  said  records"  of  two  carriers  in  evidence 
was  unavailable. 

Flowers  v.  Birmingham  (Ala.  App.),  83  So.  36. 

Identification  of  Books  by  Express  Employees. — In 

prosecution  for  soliciting  and  receiving  orders  for  liquors 
the  sale  of  which  was  prohibited  in  the  state,  testimony  of  a 
witness  formerly  in  employ  of  the  express  company  that 


TITLE  II— SEC.  33  OF  ACT  419 

book  shown  him  was  made  in  company's  office  while  he  was 
in  charge,  but  that  he  did  not  make  the  book  or  do  the 
writing  therein,  was  not  objectionable. 

Flowers  v.  Birmingham  (Ala.  App.),  83  So.  36. 

20.  ORDERING  AND  RECEIVING  LARGE  QUANTITIES  OF  LIQUOR. 

The  receipt  of  large  quantities  of  liquor  is  at  least  some 
evidence  of  the  receipt  of  such  liquor  for  unlawful  purposes. 
Accordingly,  it  is  generally  held  that  it  is  competent  for  the 
state  to  show  a  criminal  purpose,  either  of  possession  or 
sale,  by  proving  that  the  accused  has  ordered  or  received 
liquor  in  quantities  larger  than  would  ordinarily  be  required 
for  personal  use. 

State  v.  Gordon,  32  N.  D.  31,  155  N.  W.  59,  Ann.  Cas. 

1918A,  442. 

Brigham  v.  State,  8  Ala.  App.  400,  62  So.  980. 
Wilson  v.  Commonwealth,  181  Ky.  370,  205  S.  W.  391. 
Watson  v.  State,  8  Ala.  App.  414,  62  So.  997. 
Bragg  v.  State,  15  Ga.  App.  623,  630,  84  S.  E.  82. 
Hayes  v.  State,  18  Ga.  App.  68,  88  S.  E.  752. 
State  v.  McKone,  31  N.  D.  547,  154  N.  W.  256. 
Coates  v.  State,  5  Ala.  App.  182,  59  So.  323. 
Borders  v.  Macon,  18  Ga.  App.  333,  89  S.  E.  451. 
State  v.  Blauntia,  170  N.  C.  749,  87  S.  E.  101. 
Dunn  v.  State,  8  Ala.  App.  382,  62  So.  379. 
Webb  v.  State,  13  Ga.  App.  733,  80  S.  E.  14. 
Clark  v.  State,  74  Tex.  Cr.  App.  464,  169  S.  W.  895. 
Springer  v.  State,  129  Ark.  106,  195  S.  W.  376. 
Dunn  v.  State,  18  Ga.  App.  95,  89  S.  E.  170. 

This  is  especially  true  where  the  liquor  alleged  to  have 
been  unlawfully  sold  is  shown  to  be  of  the  same  character 
and  put  up  in  packages  or  containers  of  the  same  size  and 
description  as  the  liquor  received  by  the  accused. 

Webb  v.  State,  13  Ga.  App.  733,  80  S.  E.  14. 

The  weight  of  such  evidence  depends  in  no  little  degree 
upon  its  nearness  or  remoteness  in  point  of  time  to  the  mat- 
ter under  investigation. 

Webb  v.  State,  13  Ga.  App.  733,  80  S.  E.  14. 


420  TITLE  II— SEC.  33  OF  ACT 

Illustrative  Cases. — Evidence  of  frequent  large  impor- 
tation of  liquors  by  appellant  on  dates  immediately  prior  to 
the  date  charged  in  the  information  was  admissible,  as  tend- 
ing to  show  a  criminal  purpose  as  charged  in  importing  the 
liquors  on  such  date. 

State  v.  McKone,  31  N.  D.  547,  154  N.  W.  256. 

In  a  prosecution  for  violating  the  prohibitory  law,  evi- 
dence that  whisky  had  frequently  been  seen  at  the  railroad 
station  shipped  to  accused,  admitted  without  objection  was 
a  circumstance  that  could  be  looked  to  in  determining  the 
question  of  defendant's  violation  of  the  law. 

Coates  v.  State,  5  Ala.  App.  182,  59  So.  323. 

Where  a  witness  testified  that  he  had  frequently  seen  a 
barrel  of  whisky  at  E.  shipped  to  defendant,  that  the  last 
time  he  saw  a  barrel  at  the  depot  was  on  the  preceding 
Thursday,  and  that  it  was  hauled  out  on  Friday  by  defend- 
ant's son  and  was  marked  "Glass,  \2l/2  gallons,"  defendant 
was  not  prejudiced  by  the  court  permitting  the  witness  to 
further  testify,  over  objection,  that  he  had  seen  other  ship- 
ments to  the  defendant,  some  in  barrels  and  some  in  drums, 
and  that  he  saw  a  shipment  about  a  week  before  the  one 
concerning  which  he  had  previously  testified. 
Coates  v.  State,  5  Ala.  App.  182,  59  So.  323. 

There  was  no  error  in  allowing  a  witness  to  testify  that 
he  had  hauled  some  barrels  for  the  accused,  and  that  the 
accused  paid  him  therefor,  though  he  "could  not  tell  how 
many  gallons  to  the  barrels."  This  evidence  was  relevant 
and  material,  and  was  not  objectionable  upon  the  ground 
that  the  contents  of  the  barrels  were  not  identified  as  in- 
toxicating liquor. 

Borders  v.  Macon,  18  Ga.  App.  333,  89  S.  E.  451. 

It  was  proper  to  permit  a  drayman  to  testify  that  he  had 
taken  two  barrels  for  the  accused  to  the  building  in  ques- 
tion and  also  that  he  carried  to  the  same  place  a  little  box 
of  case  goods,  making  two  dray  loads  that  were  carried 
there,  although  he  testified  that  he  was  not  personally  ac- 
quainted with  the  accused;  the  witness  testifying  that  "that 
gentleman  (the  accused)  looks  like  him."  Such  testimony 
was  not  immaterial  and  irrelevant,  and  was  not  objection- 


TITLE  II— SEC.  33  OF  ACT  421 

able  upon  the  ground  that  the  witness  had  not  identified  the 
accused  as  the  person  employing  him,  and  that  it  was  not 
shown  that  the  goods  were  intoxicating  liquors. 

Borders  v.  Macon,  18  Ga.  App.  333,  89  S.  E.  451. 

In  a  prosecution  for  unlawfully  having  spirituous  liquor 
to  sell  in  violation  of  law,  where  a  witness  testified  that  a 
man  told  him  to  take  the  barrels  containing  whisky  to  de- 
fendant had  given  similar  directions  about  another  barrel, 
and  that  barrels  and  empty  bottles  resembling  the  barrels 
and  bottles  seized  were  found  at  defendant's  house,  the 
statement  of  the  first  witness  that  some  one  had  told  him 
to  take  the  whisky  to  the  defendant's  house  was  relevant, 
though  he  could  not  identify  defendant  as  the  man  who 
gave  him  the  bills  of  lading  to  secure  the  whisky  from  the 
carrier. 

State  v.  Blauntia,  170  N.  C.  749,  87  S.  E.  101. 

The  admission  of  evidence  for  the  state  that  at  the  time 
defendant  ordered  the  whisky  (a  part  of  which  was  found 
in  his  store)  he  ordered  48  half  pints  was  not  erroneous. 

Dunn  v.  State,  8  Ala.  App.  382,  62  So.  379. 

Evidence  that  large  quantity  of  whisky  contained  in  pint 
bottles  had  been  claimed  by  the  accused  and  delivered  to 
him  was  admissible  on  his  trial  for  the  offense  of  selling 
intoxicating  liquor.  Especially  is  this  so  where  the  liquor 
alleged  to  have  been  sold  was  of  the  same  quantity  as  the 
liquor  contained  in  the  bottles.  It  is  a  circumstance  of 
corroboration  of  more  or  less  weight  according  to  its  near- 
ness or  remoteness  to  the  matter  under  investigation. 

Webb  v.  State,  13  Ga.  App.  733,  80  S.  E.  14. 

Same ;  Nearness  or  Remoteness  in  Point  of  Time.— 

In  a  prosecution  for  the  unlawful  sale  of  intoxicating  liq- 
uor, the  state  may  cross  examine  the  defendant  as  to  the 
number  of  times  within  the  last  six  months  or  a  year  he 
had  gone  away  and  brought  back  with  him  intoxicating  liq- 
uors for  the  purpose  of  proving  that  he  had,  from  time 
to  time  procured  and  had  on  hand  such  liquor. 

Clark  v.  State,  74  Tex.  Cr.  App.  464,  169  S.  W.  895. 


422  TITLE  II— SEC.  33  OF  ACT 

On  a  trial  for  the  illegal  sale  of  intoxicating  liquor  in 
July  or  August,  evidence  that  during  the  months  of  Jan- 
uary to  June,  inclusive,  defendant  received  consignments  of 
liquor  in  larger  quantities  than  would  be  required  for  his 
personal  use,  was  properly  admitted. 

Springer  v.  State,  129  Ark.  106,  195  S.  W.  376. 

Proof  that  the  accused  had  received  from  the  express 
company  within  two  years  next  preceding  the  indictment, 
between  500  and  1,000  gallons  of  whisky  is  competent. 
This  fact  may  be  considered  only  by  the  jury  as  a  corrobo- 
rative value  of  other  evidence  which  may  tend  to  show  the 
defendant's  guilt. 

Dunn  v.  State,  18  Ga.  App.  95,  89  S.  E.  170. 

Liquor  Ordered  in  Another's  Name. — In  a  prosecu- 
tion for  selling  whisky,  the  fact  that  defendant  ordered 
whisky  several  times  in  another's  name  was  a  material  cir- 
cumstance tending  to  prove  that  defendant  was  in  the  liq- 
uor business. 

Holt  v.  State,  126  Ark.  223,  190  S.  W.  101. 

Evidence  That  Others  Had  Received  Large  Quan- 
tities Also. — On  a  trial  for  the  illegal  sale  of  intoxicating 
liquor  where  the  alleged  purchaser  was  well  acquainted 
with  defendant,  and  the  question  between  them  was  one  of 
veracity  and  not  of  identity,  evidence  that  other  persons  had 
received  liquor  in  as  large  quantities  as  defendant  was 
shown  to  have  received,  was  properly  excluded. 
Springer  v.  State,  129  Ark.  106,  195  S.  W.  376. 

21.  RECORDS  OF  EXPRESS  AND  RAILWAY  COMPANIES. 

Upon  a  trial  for  illegal  sale  of  intoxicating  liquor,  it  is 
not  error  to  admit  in  evidence  express  receipts  as  tending 
to  show  shipments  of  liquor  to  defendant. 

State  v.  Gesell,  137  Minn.  41,  162  N.  W.  683,  684. 

Delivery  and  Receipt  Book  with  Defendant's  Sig- 
nature.— The  delivery  book  of  an  express  company  in 
which  various  consignments  of  liquor  were  receipted  for 
by  the  defendant,  is  admissible  in  evidence  in  a  prosecution 


II— SEC.  33  OF  ACT  423 

for  unlawfully  keeping  intoxicating  liquor  for  sale,  and  in 
spite  of  the  fact  that  the  original  bills  of  lading  or  shipping 
bills  were  not  introduced,  where  the  signature  of  such  de- 
fendant appears  in  such  book  as  a  receipt  for  such  liquor 
and  is  proved  to  be  his. 

State  v.  Gordon,  32  N.  D.  31,  155  N.  W.  59,  Ann.  Cas. 

1918A,  442. 

The  depot  agent  may  properly  testify  that  the  receipts 
for  the  liquor  are  in  defendant's  handwriting ;  it  tending  tc 
show  that  defendant  actually  received  the  liquors. 

Hodge  v.  State,  11  Ala.  App.  185,  65  So.  676. 

Sufficiency  of  Identification  of  Consignee. — Whether, 
in  a  prosecution  for  using  the  name  of  another  in  ordering 
or  receiving  intoxicating  liquor,  the  evidence  identifies  the 
defendant,  to  the  satisfaction  of  the  trial  judge,  with  a  re 
ceipt  such  as  that  mentioned  is  a  question  for  the  trial  judge 
alone  to  determine.  The  receipts  in  such  case  constitute 
merely  a  link  in  the  chain  of  evidence,  and  are  admissible. 

State  v.  Ferris,  142  La.  198,  76  So.  608. 

Evidence  to  Show  Liquor  Ordered  by  Others  in 
Name  of  Consignee. — Evidence  on  prosecution  of  a  ne- 
gro for  engaging  in  the  business  of  selling  liquors  in  pro- 
hibition territory,  that  white  people  often  ordered  whisky 
in  the  names  of  negroes  and  then  got  it  from  the  express 
office,  or,  finding  it  had  come,  got  them  to  sign  for  it,  is 
inadmissible  for  defendant,  not  being  connected  with  him. 

Jackson  v.  State  (Tex.  Cr.  App.),  200  S.  W.  150. 

Otter  Records  and  Books  of  Entry;  Identification 
of  Entries;  Present  Recollection,  etc. — Where  the  wit- 
ness testifies  that  he  had  made  an  entry  in  the  books  of  an 
express  company  purporting  to  show  delivery  of  a  package 
marked  "whisky,"  that  he  knows  the  defendant  was  there 
in  person  and  received  it,  and  that  he  knows  the  entry  was 
correct  when  made,  but  that  he  has  no  recollection  of  the 
transaction  apart  from  the  entry,  the  entry  is  admissible  in 
evidence. 

Herring  v.  State,  11  Ala.  App.  202,  65  So.  707. 


424  TITLE  II— SEC.  33  OF  ACT 

The  admission  of  such  a  memoranda  of  delivery  of  a 
package  marked  whisky  is  not  prejudicial  where  another 
witness,  who  testifies  to  its  correctness,  states  the  delivery 
as  a  fact  recollected  apart  from  such  entry. 

Herring  v.  State,  11  Ala.  App.  202,  65  So.  707. 

Express  records  showing  shipments  of  liquor  to  defend- 
ant are  admissible,  although  the  particular  entry  is  in  the 
handwriting  of  another  than  the  witness,  but  with  whose 
handwriting  witness  is  familiar. 

Fisher  v.  State,  81  Tex.  Cr.  App.  568,  197  S.  \Y.  189. 

Express  records  being  admissible  in  a  prosecution  for 
pursuing  business  of  selling  intoxicating  liquors,  it  is  not 
reversible  error  to  permit  the  witness  to  state  that  the 
books  show  the  entries  in  question;  such  statement  being 
merely  cumulative  of  the  facts  disclosed  by  the  book. 

Fisher  v.  State,  81  Tex.  Cr.  App.  568,  197  S.  \V.  189. 

Agent  May  Explain  Abbreviations. — No  error  is 
committed  in  a  prosecution  for  the  unlawful  keeping  for 
sale  of  intoxicating  liquor  in  allowing  the  express  agent 
who  delivered  the  goods  to  testify  as  to  the  meaning  of  ab- 
breviations in  his  receipt  book,  such  as  "Hg.,"  "cs.,"  "Bx." 

State  v.  Gordon,  32  N.  D.  31,  155  N.  W.  59,  Ann.  Cas. 
1918A,  442. 

Records  Made  Admissible  by  Statute. — The  books 
required  to  be  kept  by  express  companies,  railroads,  and 
other  transportation  companies  under  the  provisions  of 
section  6  of  chapter  70,  Session  Laws  1911,  when  prop- 
erly identified  by  the  person  in  possession  and  control  of 
the  same  are  admissible  in  evidence  in  a  case  where  the 
defendant  is  charged  with  a  violation  of  the  prohibitory 
liquor  laws  of  this  state. 

Fletcher  v.  State,  13  Okla.  Cr.  App.  563,  165  Pac.  907. 

The  original  records  of  liquor  shipments  of  express  com- 
panies, railroad  companies,  public  or  private  carrier,  pre- 
pared in  accordance  with  section  6,  c.  27,  p.  126,  Sess.  Laws 
1913,  are  admissible  in  evidence  under  the  laws  of  this 


TITLE  II— SEC.  33  OF  ACT  425 

state,   without   identification  of  the   signature  of   the  con- 
signee. 

State  z:  Maguire,  31  Idaho  24,  169  Pac.  175. 

Affidavits,  etc.,  Made  Prima  Facie  Evidence. — Un- 
der Va.  Acts,  1916,  c.  146,  making  them  prima  facie  evidence, 
and  independent  thereof,  the  affidavits  of  receiver  of  liq- 
uors, made  a  part  of  express  records,  are  competent  evi- 
dence of  all  facts  which  they  tend  to  prove,  including  the 
corpus  delicti. 

Cochran  v.  Commonwealth,  122  Va.  801,  94  S.  E.  329. 

In  prosecution  for  receiving  liquor  from  an  express  com- 
pany in  excess  of  quantity  allowed  by  Acts  1916,  c.  146, 
§  40,  the  contention  that  the  records  of  the  express  com- 
pany, and  affidavits,  which  are  a  part  thereof,  of  the  person 
receiving  the  liquor,  are  not  admissible  until  the  corpus 
delicti  has  been  otherwise  proven,  is  without  merit. 

Cochran  v.  Commonwealth,  122  Va.  801,  94  S.  E.  329. 

Not  Violative  of  Right  of  Confrontation. — The  ad- 
mission of  the  express  records,  showing  receipt  of  liquor 
by  accused,  is  not  a  violation  of  the  right  to  be  confronted 
with  accusers,  as  provided  by  the  Va.  Const.  §  8  (Code  1904, 
p.  ccix)  ;  such  constitutional  provision  not  being  intended 
to  exclude  proper  documentary  evidence. 

Cochran  v.  Commonwealth,  122  Va.  801,  94  S.  E.  329. 

22.  TESTIMONY  OF  EXPRESS  AND  RAILWAY  AGENTS. 

The  testimony  of   an  express  agent  that  defendant   re- 
ceived from  his  certain  shipments  of  whisky  is  admissible. 
Fugate  v.  Commonwealth,  171  Ky.  227,  188  S.  \V.  324. 

In  prosecution  for  having  unlawful  possession  of  intox- 
icating liquors,  the  agent  of  the  express  company  can  tes- 
tify as  to  the  dates  on,  and  amounts  in,  which  accused  re- 
ceived liquors. 

State  v.  Bradley,  109  S.  C.  411,  96  S.  E.  142. 

And  it  was  proper  to  admit  testimony  of  railroad  and 
transfer  agents  showing  that  during  the  period  in  which 


426  TITLE  II— SEC.  33  OF  ACT 

defendants  were  charged  with  selling  intoxicating  liquors 
illegally,  they  at  different  times  received  and  delivered  to 
defendants  large  quantities  of  intoxicating  liquors  con- 
signed to  defendants  or  to  other  persons  for  them. 

Gage  v.  State,  125  Ark.  256,  188  S.  W.  803. 

Proof  of  Handwriting,  Signatures,  etc. — A  witness 
who  had  examined  a  large  number  of  delivery  orders  each 
day  for  ten  years,  to  determine  whether  the  signatures  there- 
on were  those  of  the  consignees,  is  qualified  to  testify  that 
in  his  opinion  the  signatures  on  orders  for  liquor  were  all 
written  by  the  same  person. 

State  v.  Killeen  (N.  H.),  107  Atl.  601. 

A  former  employee  of  the  express  company  may  identify 
books  and  records  offered  in  evidence  as  being  the  books 
and  records  made  and  kept  in  the  company's  office,  though 
he  did  not  actually  make  them  himself. 

Flowers  v.  Birmingham  (Ala.  App.),  83  So.  36. 

Policy  as  to  Baggage  Containing  Liquor. — It  is  not 

error  to  refuse  to  allow  the  agent  of  the  defendant  railway 
company  to  testify  what  his  policy  was,  and  what  he  had 
done  on  previous  occasions  relative  to  baggage  containing 
whisky.  (Compare  Donaldson  v.  State,  3  Ga.  App.  451,  60 
S.  E.  115). 

Seaboard  Air  Line  Railway  v.  State  (Ga.  App.),  97  S. 
E.  549. 

Testimony  of  Agent  of  Wholesale  Drug  Company. — 

In  prosecution  for  having  possession  of  intoxicating  liquors 
with  intent  to  dispose  of  them  unlawfully,  testimony  of  an 
agent  of  a  wholesale  drug  company  that  he  always  dealt 
with  accused  for  a  retail  drug  company,  that  certain  quan- 
tities of  alcohol  and  cologne  spirits  were  sold  to  such  drug 
store  on  orders  signed  by  accused,  declaring  an  intent  to 
use  same  for  chemical  and  mechanical  purposes,  and  coupled 
with  complete  identification  of  all  sales  not  actually  wit- 
nessed by  him,  was  not  inadmissible  as  hearsay. 

State  v.  Billingsley,  99  Wash.  445,  169  Pac.  845. 


TITLE  II— SEC.  33  OF  ACT  427 

23.  PROOF  OF  LAWFULNESS  OF  POSSESSION. 

Where  the  defendant  claims  that  the  whisky  found  in  his 
place  of  business  was  some  that  he  ordered  three  weeks  be- 
fore for  his  own  use,  it  is  competent  to  show  how  long  it 
had  been  since  he  had  ordered  whisky  prior  to  that  order, 
since  that  was  a  circumstance  tending  to  rebut  the  statutory 
presumption  arising  from  the  presence  of  whisky  in  his 
place  of  business. 

Freeney  v.  Jasper,  8  Ala.  App.  469,  62  So.  385. 

Poverty  of  Defendant  as  Showing  Liquor  Not  In- 
tended for  Personal  or  Other  Lawful  Use. — In  a  pros- 
ecution for  the  violation  of  the  prohibition  law,  evidence  as 
to  the  quantity  of  intoxicating  liquor,  the  number  of  the 
deliveries  of  it  to  defendant  within  a  short  period,  and  as 
to  the  meagerness  of  his  means  of  making  such  purchases 
for  his  personal  use,  was  admissible  as  tending  to  show  that 
he  received  it  for  sale  or  other  unlawful  disposition. 

Herring  v.  State,  11  Ala.  App.  202,  65  So.  707. 

Where  on  a  trial  for  violating  the  prohibition  law  there 
was  evidence  that  accused  on  November  10th  received  four 
cases  of  liquor,  and  on  October  5th,  12th,  14th,  17th,  20th, 
and  28th  respectively,  and  that  his  only  employment  at  that 
time  and  on  November  10th  was  that  of  a  buggy  boy,  was 
properly  admitted  as  a  basis  for  the  inference  that  he  was 
receiving  liquor  for  sale  or  other  illegal  disposition. 

Watson  v.  State,  11  Ala.  App.  199,  65  So.  689. 

Evidence  That  Packages  Marked  for  Personal  Use. 

— Evidence  that  each  of  the  packages  delivered  to  defendant 
by  the  express  agent  was  marked  for  personal  use,  as  re- 
quired by  Ky.  St.  2569b,  subsec.  3,  of  an  independent  act 
regulating  transportation  and  delivery  by  carriers,  was  in- 
admissible. 

Combs  v.  Commonwealth,  171  Ky.  231,  188  S.  W.  326. 

24.  SALES  AS  EVIDENCE  OF  UNLAWFUL  POSSESSION. 

Where  a  person  is  charged  with  the  offense  of  unlawfully 
keeping  intoxicating  liquor  for  sale,  evidence  of  sales  by 


428  TITLE  II— SEC.  33  OF  ACT 

him  is  admissible  as  a  circumstance  tending  to  prove  the 
crime  charged. 

State  v.  Gordon,  32  N.  D.  31,  155  N.  W.  59,  Ann.  Cas. 

1918A.  442. 

Kirk  v.  State,  14  Ala.  App.  44,  70  So.  990. 
Cheek  v.  State,  3  Ala.  App.  646,  57  So.  108. 
Spigener  v.  State,  11  Ala.  App.  296,  66  So.  896. 
Borok  v.  Birmingham,  191  Ala.  75,  67  So.  389,  Ann. 
Cas.  1916C,  1061. 

A  witness  who  has  testified  to  purchasing  whisky  from  de- 
fendant on  a  particular  occasion  may  also  testify  that  he 
purchased  it  on  previous  occasions,  such  testimony  tending 
to  support  the  charge  that  defendant  was  keeping  liquors 
for  sale  contrary  to  law. 

Spigener  v.  State,  11  Ala.  App.  296,  66  So.  8%. 

\Yhere  the  issue  was  whether  defendant  kept  at  his  store- 
house prohibited  liquors  with  intent  to  sell  the  same  con- 
trary to  law.  a  question  to  a  witness,  whether  he  bought 
liquor  at  that  location  recently  before  the  offense  alleged  and 
after  the  passage  of  the  ordinance,  was  an  evidential  fact 
bearing  on  defendant's  guilt. 

Borok  v.  Birmingham,  191  Ala.  75,  67  So.  389,  Ann. 
Cas.  1916C,  1061. 

Where  proof  is  made  that  liquor  was  on  several  occa- 
sions delivered  to  customers  at  the  shop  of  the  defendant, 
it  is  immaterial  that  the  liquor  itself  was  stored  at  some 
other  place. 

State  v.  Gordon,  38  N.  D.  31,  155  N.  W.  59,  Ann.  Cas. 
1918A,  442. 

Under  a  complaint  which,  besides  charging  the  offense  of 
selling  prohibited  liquors,  charged  in  different  counts  and 
in  the  alternative  in  each  of  such  counts  of  the  offense  of 
keeping  prohibited  liquors  for  sale,  evidence  of  several  dif- 
ferent sales  at  different  times  was  admissible  to  show  that 
such  liquors  were  kept  for  sale  in  violation  of  the  statute. 
Kirk  v.  State,  14  Ala.  App.  44,  70  So.  990. 

In  a  proceeding  to  search  a  hotel  for  liquors  unlawfully 
kept  for  sale  or  other  disposition,  under  Act  Aug.  25,  1909, 


TITLE  II— SEC.  33  OF  ACT  429 

(Gen.  &  Loc.  Laws  Sp.  Sess.  1909,  p.  74,  §  22)  the  state 
could  show  that  liquors  had  recently  been  sold  there,  ana 
hence  it  was  proper  to  admit  proof  that  the  sheriff  sent  a 
negro  with  no  whisky  on  his  person  into  the  hotel,  and  re- 
mained in  front  of  and  near  the  hotel  until  the  negro  re- 
turned with  whisky,  and  that  he  gave  the  negro  money,  and 
directed  him  to  go  into  the  hotel  and  buy  whisky  and  bring 
it  to  him. 

Cheek  v.  State,  3  Ala.  App.  646,  57  So.  108. 

Proof  of  Conspiracy  to  Sell.— In  prosecution  for  un- 
lawful possession  of  intoxicating  liquors,  evidence  tending 
to  show  that  defendant  and  another  were  conspirators  en- 
gaging in  the  unlawful  traffic  of  prohibited  liquors  was  ad- 
missible. 

Campbell  v.  State  (Ala.  App.),  78  So.  715. 

As  Evidence  of  Unlawful  Manufacture.— In  such 
prosecution  testimony  of  a  witness  that  he  had  purchased 
from  the  defendant  liquor  of  the  same  kind  as  defendant 
was  charged  with  making  was  admissible,  though  defend- 
ant had  been  acquitted  of  selling  liquor  to  the  witness. 

Lowery  v.  State,  135  Ark.  159,  203  S.  W.  838. 

25.  UNLAWFUL  ISSUANCE  OF  PRESCRIPTIONS. 

Diploma  as  Evidence  of  License  to  Practice. — The 

testimony  of  a  physician  that  he  has  a  diploma  authorizing 
him  to  practice  medicine  is  incompetent  to  show  that  he  is 
a  licensed  physician. 

McAllister  v.  State,  156  Ala.  122,  47  So.  161. 

Druggist's  Record;  Best  Evidence;  Oral  Testimony. 

— Where  every  reasonable  effort  by  means  of  a  subpoena 
duces  tecum  had  been  made  to  have  the  record  book  of  a 
drug  store  and  its  prescription  file  brought  into  court  in  a 
prosecution  for  having  issued  a  prescription  without  hav- 
ing reason  to  believe  that  the  person  to  whom  it  was  issued 
was  sick,  etc.,  oral  testimony  as  to  the  contents  of  the  rec- 
ord and  file  was  admissible. 

Seattle  v.  Hewetson,  95  Wash.  612,  164  Pac.  234. 


430  TITLE  II— SEC.  33  OF  ACT 

Other  Prescriptions;  Number  of  Prescriptions. — In 

a  prosecution  of  a  physician  for  having  issued  a  prescrip- 
tion for  whisky  without  having  reason  to  believe  that  the 
person  to  whom  it  was  issued  was  sick,  or  that  the  liquor 
was  required  as  medicine,  testimony  relating  to  prescrip- 
tions other  than  that  on  which  the  charge  is  laid  is  admis- 
sible as  material  on  defendant's  good  faith. 

Seattle  v.  Hewetson,  95  Wash.  612,  164  Pac.  234. 

Evidence  as  to  the  number  of  prescriptions  issued  by  him 
about  the  time  of  the  offense  charged  is  admissible  on  the 
question  of  good  faith. 

Everett  v.  Cowles,  97  Wash.  396,  166  Pac.  786. 
Seattle  v.  Hewetson,  95  Wrash.  612,  164  Pac.  234. 

"The  trial  judge  permitted  the  introduction  of  testimony 
showing  the  giving  of  some  56  other  prescriptions  than 
those  given  to  the  party  named  in  the  information  and  at 
about  the  same  time.  Appellant  had  issued  to  his  patient 
5  prescriptions  between  the  26th  day  of  August,  1917,  and 
September  11,  1917,  each  calling  for  one  quart  of  whisky. 
On  each  prescription  the  patient  is  directed  to  take  one  ounce 
of  the  remedy  in  water  three  times  a  day.  As  these  pre- 
scriptions obviously  call  for  a  greater  quantity  of  liquor 
than  was  necessary  to  meet  the  needs  of  the  patient  if  'taken 
as  directed,'  the  good  faith  of  the  physician,  the  issue  in 
this  class  of  cases,  was  clearly  tendered  by  the  state,  and  to 
further  sustain  the  issue  the  other  prescriptions  were  offered. 
'The  rule  is  that,  in  cases  of  this  character,  such  evidence  is 
competent.  The  real  issue  in  such  a  case  is  whether  the 
prescription  was  given  in  good  faith,  and,  as  bearing  upon 
this  question,  the  number  of  prescriptions  given  by  the  ac- 
cused, within  a  specified  time,  for  intoxicating  liquor,  to  va- 
rious persons,  as  found  on  the  file  of  the  druggist,  in  whose 
store  the  appellant  kept  his  office,  is  competent.'  Seattle  v. 
Hewetson,  95  Wash.  612,  164  Pac.  234;  Everett  v.  Cowles, 
97  Wash.  396,  166  Pac.  786.  It  is  urged  that  this  procedure 
is  violative  of  the  rule  that  proof  of  crimes  independent 
and  in  no  way  related  to  the  crime  charged  cannot  be  es- 
tablished to  prove  a  specific  offense.  It  would  be  so  if  the 
crime  charged  rested  alone  in  the  doing  of  the  act  charged. 
But  the  gravaman  of  the  offense  is  not  in  the  doing  of  the 


TITLE  II— SEC.  33  OF  ACT  431 

deed,  but  in  the  faith  in  which  it  was  done.  The  rule  seems 
to  have  grown  out  of  the  necessities  of  the  statute,  for  the 
act  itself  is  presumptively  a  lawful  act  sanctioned  by  stat- 
ute. It  is  rendered  unlawful  when,  and  only  when,  the 
writer  of  the  prescription  abuses  the  confidence  that  is  re- 
posed in  him  and  by  the  injection  of  the  subtle  quality  of 
bad  faith  thwarts  the  police  power  of  the  state.  From  the 
nature  of  things,  good  or  bad  faith  can  only  be  proved  by 
resort  to  circumstances  and  sidelights.  If  it  were  otherwise 
— if  the  mere  giving  of  a  prescription  or  a  number  of  pre- 
scriptions by  a  licensed  physician  would  bar  further  in- 
quiry— the  law  would  be  emasculated  of  its  purpose.  It  is 
not  going  beyond  the  range  of  judicial  vision  to  say  that 
liquor  has  not  always  been  regarded  as  a  cure-all  or  touch- 
stone of  health,  but  that  it  has  grown  in  popular  favor  as  a 
remedy  as  the  chance  of  procuring  it  has  grown  remote ; 
and,  although  a  physician  who  prescribes  it  may  be  imposed 
upon  at  times,  a  general  dispensation  of  the  remedy  at  or 
about  the  time  charged  is  sufficient  to  put  him  to  the  defense 
of  his  good  intention  before  a  jury  of  his  countrymen." 

State  v.  Raub  (Wash.),  173  Pac.  1094. 
26.  MISCELLANEOUS  QUESTIONS  OF  RELEVANCY. 

Defendant's  Good  Character. — In  a  prosecution  of  a 
physician  for  having  prescribed  whisky  for  a  patient  with 
good  reason  to  believe  that  the  latter  intended  to  use  it  as  a 
beverage,  the  jury  could  consider  evidence  of  defendant's 
good  character,  not  only  in  case  of  doubt  of  guilt,  but  also 
to  create  a  doubt. 

People  -v.  Humphrey,  194  Mich.  10,  160  N.  W.  445,  446. 

VII.  Weight  and  Sufficiency  of  Evidence. 

1.  WEIGHT  OF  CIRCUMSTANTIAL  EVIDENCE. 

A  conviction  for  a  violation  of  the  liquor  laws,  either 
unlawful  possession,  possession  for  the  purpose  of  unlaw- 
ful sale,  or  for  the  unlawful  sale  itself,  may  be  supported 
by  circumstantial  evidence  alone. 

Reismier  v.  State,  148  Wis.  593,  135  N.  W.  153. 
Butler  v.  Washington,  11  Ga.  App.  133,  74  S.  E.  858. 
Cage  v.  State,  11  Ga.  App.  318,  75  S.  E.  160. 
Smith  v.  State,  21  Ga.  App.  143,  94  S.  E.  62. 


432  TITLE  II— SEC.  33  OP  ACT 

Verdicts  may  rest  upon  rightful  inference  as  well  as 
upon  direct  testimony. 

Robilio  v.  United  States  (C.  C.  A.),  259  Fed.  101. 
Laughter  v.  United  States  (C.  C.  A.),  259  Fed.  94. 

In  determining  whether  the  evidence  is  sufficient  to  sustain 
the  verdict  of  the  jury,  or  the  finding  of  the  court,  the  court 
will  consider,  not  only  the  positive  testimony  of  the  witnesses, 
but  also  such  inferences  as  flow  naturally  from  established 
facts.  Chicago,  etc.,  R.  Co.  v.  Lake  County,  etc.,  Sav.  Co., 
186  Ind.  358,  362,  114  N.  E.  454;  Southern  Products  Co.  v. 
Franklin,  etc,  Co,  183  Ind.  123,  124,  106  N.  E.  872;  Union 
Nat.  Bank  v.  Finley,  180  (Ind.  470,  475,  103  N.  E.  110; 
Goodman  v.  State  (Ind.),  121  N.  E.  826.  The  evidence  is 
amply  sufficient  to  sustain  the  finding  of  the  Marion  crimi- 
nal court.  No  error  appearing  in  the  record  the  judgment 
is  affirmed. 

Schulmeyer  v.  State  (Ind.),  124  N.  E.  490. 

A  charge  of  having  possession  of  spirituous  liquor  for 
purpose  of  sale  may  be  supported  by  circumstantial,  as  well 
as  by  direct  evidence. 

Woods  v.  Commonwealth,  171  Ky.  200.  188  S.  W.  350. 

The  corpus  delicti  may  be  established  by  circumstantial 
evidence;  its  sufficiency  being  for  the  jury. 

Pappenburg  v.  State,  10  Ala.  App.  224,  65  So.  418. 
Reynolds  v.  State,  18  Ariz.  388,  161  Pac.  885.     (Un- 
lawfully  introducing  liquor  into   state.) 

In  a  prosecution  for  the  unlawful  keeping  of  intoxicating 
liquor  for  sale,  circumstantial  evidence  proving  facts  which 
without  doubt  lead  to  the  conclusion  that  defendant  did 
have  possession  of  the  intoxicating  liquor  as  alleged,  and 
kept  it  at  the  place  charged  for  the  unlawful  purpose 
charged,  and  that  he  was  making  such  sales  in  violation  of 
such  law,  is  sufficient  competent  evidence  to  support  the 
finding  of  guilt. 

Schulmeyer  v.  State  (Ind.),  124  N.  E.  490. 

A  degree  of  evidence,  circumstantial  and  insufficient  to 
convict  of  other  offenses,  may  be  sufficient  to  show  the  of- 


TITLE  II— SEC.  33  OF  ACT  433 

fense  of  having  intoxicating  liquors  in  possession  for  un- 
lawful sale. 

Lemon  v.  Commonwealth,  171  Ky.  822,  188  S.  W.  858. 

But  when  such  evidence  is  relied  on  it  must  be  inconsis- 
tent with  defendant's  innocence. 

Flood  v.  State,  12  Ga.  App.  702,  78  S.  E.  268. 

Thus  where  the  evidence  in  a  prosecution  for  possessing 
and  controlling  intoxicating  liquors  as  to  defendant's  con- 
nection with  the  whisky  was  entirely  circumstantial  and 
failed  to  exclude  every  reasonable  hypothesis  save  that  of 
her  guilt  and  was  consistent  with  the  theory  of  her  inno- 
cence, a  denial  for  her  motion  for  a  new  trial  was  erroneous. 
Mullins  v.  State  (Ga.  App.),  100  S.  E.  755. 

A  judgment  of  conviction  for  possession  of  intoxicating 
liquor  with  unlawful  intent,  resting  solely  upon  slight  cir- 
cumstantial evidence,  which  is  offset  by  the  positive  denial 
of  the  defendant,  whose  good  character  is  unquestioned,  is 
not  warranted  by  the  evidence. 

Silva  v.  State,  11  Okla.  Cr.  App.  12,  141  Pac.  235. 

While  a  sale  may  be  proved  by  circumstantial  evidence, 
the  circumstances  must  warrant  the  inference  that  there  was 
a  seller  and  a  purchaser  and  compensation  for  the  thing 
sold. 

Scoggin  v.  Morrilton,  124  Ark.  585,  187  S.  W.  445. 

Corroboration. — \Yhere  there  was  direct  evidence  of 
violation  of  the  local  option  law,  the  defendant's  possession 
of  an  unusual  quantity  of  liquor,  which  he  permitted  to  be 
drunk  in  the  house,  constituted  corroborative  circumstances, 
justifying  instructions  on  circumstantial  evidence. 
People  v.  Silver,  286  111.  496,  122  N.  E.  115. 

2.  EVIDENCE  OF  DETECTIVE,  ACCOMPLICE,  ETC. 

The  testimony  of  a  detective  employed  by  an  anti-saloon 
league  in  proceedings  to  enjoin  liquor  nuisances  is  to  be 
weighed  in  the  light  of  that  fact  and  of  his  interest  in  the 
result  of  the  case. 

Barber  v.  Buonanni  Co.,  179  la.  642,  161  X.  W.  688. 

—28 


434  TITLE  II— SEC.  33  OF  ACT 

The  uncorroborated  evidence  of  a  detective,  however,  if 
believed  by  the  jury,  is  sufficient  to  support  a  conviction. 

Condit  v.  State,  130  Ark.  341,  197  S.  W.  579. 

The  uncorroborated  evidence  of  a  detective  who  admitted 
that  he  induced  accused  to  make  the  sale  in  order  to  detect 
him  in  a  violation  of  law,  though  contradicted  by  accused, 
will  support  a  conviction  for  violation  of  the  local  option 
law. 

Looper  v.  State,  74  Tex.  Cr.  App.  144,  167  S.  W.  432. 

In  a  nuisance  prosecution  for  selling  intoxicating  liquors, 
testimony  of  a  so-called  informer  employed  for  the  ex- 
press purpose  of  procuring  evidence,  who  was  corroborated 
to  some  extent,  warrants  a  conviction. 

State  v.  Hoffman   (Ore.),  166  Pac.  765. 

The  requirement  of  corroboration  of  an  accomplice's  tes- 
timony does  not  apply  to  testimony  of  a  mere  purchaser  of 
liquor  illegally  sold,  for,  not  being  a  participant  in  the  of- 
fense, he  cannot  be  treated  as  an  accomplice. 

William  v.  State,  129  Ark.  344,  1%  S.  W.  125. 

Witnesses  who  procure  the  sale  of  whisky  to  secure  evi- 
dence against  defendant  are  not  accomplices  as  a  matter  of 
law  requiring  corroboration  of  their  testimony. 

Huggins  v.  State  (Tex.  Cr.  App.),  210  S.  W.  804. 

By  Texas  Pen.  Code  1911,  art.  602,  a  stool  pigeon,  who, 
at  the  direction  of  an  officer,  purchased  intoxicating  liquor 
from  defendant,  who  sold  it  in  violation  of  the  local  option 
prohibition  law,  was  not  an  accomplice  of  defendant,  to  re- 
quire corroboration  of  his  testimony. 

Canales  v.  State  (Tex.  Cr.  App.),  215  S.  W.  964. 

And  it  has  been  held  that  though  a  purchaser  of  spirit- 
uous liquor  from  one  who  sells  it  in  violation  of  law  partici- 
pates in  the  unlawful  sale,  and  is  an  accomplice,  a  jury 
may  convict  on  his  uncorroborated  testimony,  if  satisfied  be- 
yond reasonable  doubt  that  his  testimony  is  true. 

State  v.  Ryan,  1  Boyce's  (24  Del.)  23,  75  Atl.  869. 


TITI.E  II— SEC.  33  OF  ACT  435 

3.  To  PROVE;  INTOXICATING  CHARACTER. 

Marks  and  Labels.— The  label  upon  a  bottle  required  by 
the  Pure  Food  Laws  of  the  United  States  (U.  S.  Comp.  St. 
§§  8717-8728),  stating  the  component  parts  of  the  contents 
of  said  bottle,  is  presumptive  evidence  of  what  the  bottle 
contains,  and  such  bottle,  contents,  and  label  thereon  may 
be  legally  introduced  in  evidence  in  a  prosecution  for  a  vio- 
lation of  the  prohibitory  liquor  laws  of  this  state,  and,  if  not 
rebutted,  such  evidence  is  prima  fade  sufficient  to  establish 
the  character  of  the  contents  of  such  bottle  in  so  far  as  the 
statement  contained  in  said  labels  are  required  by  law. 

Gilliland  v.  State  (Okla.  Cr.  App.),  179  Pac.  786. 

Bill  of  Lading  Calling  for  Whisky.— Where  a  bill  of 
lading  issued  by  a  common  carrier  calls  for  the  delivery  of 
a  certain  package  said  to  contain  whisky,  and  a  package  is 
found  in  the  possession  of  the  carrier  corresponding  in 
number  and  weight  to  the  description  in  the  bill  of  lading 
and  having  thereon  marks  indicating  that  it  contains  intox- 
icating liquor,  a  prima  -facie  case  is  made  out  that  the  pack- 
age in  fact  contains  such  liquor. 

Shaw  v.  Atlanta,  11  Ga.  App.  391,  75  S.  E.  486. 

Looks,  Color,  Taste,  Smell,  etc.,  as  Proof  That  Liq- 
uor Was  Whisky.— Proof  that  a  defendant  sold  "liquor" 
is  sufficient  to  show,  in  the  absence  of  adverse  testimony, 
that  he  sold  intoxicating  liquor.  Especially  is  this  true  where 
the  proof  further  shows  that  it  looked  like  rye  whisky. 

Carswell  v.  State,  7  Ga.  App.  198,  66  S.  E.  488. 

In  a  prosecution  for  the  sale  of  spirituous  and  intoxicat- 
ing liquor  called  whisky  in  violation  of  the  statute,  evidence 
that  the  liquor  sold,  without  a  license,  to  the  prosecuting 
witnesses,  was  intoxicating,  that  it  looked  like  whisky  and 
tasted  like  whisky,  is  sufficient  to  sustain  a  conviction. 

White  v.  State,  88  Neb.  177,  129  N.  W.  259. 
Nixon  v.  State,  92  Neb.  115,  138  N.  W.  136. 

Where  it  was  shown  that,  at  the  time  accused  was  seen 
to  deliver  a  half  pint  bottle  containing  liquor,  he  had  in  the 
buggy  in  which  he  was  then  riding  two  suit  cases  contain- 


436  TITLE  II— SEC.  33  OF  ACT 

ing  half-pint  bottles  of  whisky,  it  sufficiently  appeared  that 
the  liquor  in  the  bottle  so  delivered  was  whisky. 
Snead  v.  State,  7  Ala.  App.  118,  61  So.  473. 

Testimony  that  a  witness  purchased  whisky  from  accused 
supported  a  conviction  for  selling  intoxicating  liquor,  al- 
though the  witness  was  unable  to  state  whether  the  liquor 
purchased  contained  one-half  of  one  per  cent  of  alcohol  or 
not;  this  not  showing  that  he  did  not  know  that  it  was 
whisky. 

Shaneyfelt  v.  State,  8  Ala.  App.  370,  62  So.  331. 

Where  there  was  conflicting  testimony  as  to  whether  the 
bottle  admitted  in  evidence  was  the  same  that  was  taken 
from  defendant's  person,  and  whether  it  contained  the  same 
whisky,  or  any  whisky,  it  was  not  error  for  the  court  to 
charge :  "this  case  is  not,  as  has  been  said,  a  wholly  circum- 
stantial case.  There  are  circumstances,  but  the  mass  of  tes- 
timony is  conflicting  positive  testimony." 

Guignard  v.  United  States  (C.  C.  A.),  258  Fed.  607. 

Looks,  Taste,  Color,  Smell,  etc.,  as  Proof  That  Liq- 
uor Was  Beer. — Upon  trial  of  an  indictment  for  selling 
intoxicating  drinks  if  the  evidence  show  a  sale  of  beer,  the 
state  has  made  a  prima  facie  case  for  conviction,  and  need 
not  give  evidence  that  the  beer  is  intoxicating;  but  the  de- 
fendant may  give  evidence  to  prove  that  the  beer  sold  is  not 
intoxicating. 

State  v.  Durr,  69  W.  Va.  251,  71   S.  E.  767,  46  L. 
R.  A.,  N.  S.,  764. 

While  the  courts  do  not  take  judicial  cognizance  of  the 
fact  that  liquor  not  otherwise  denominated  than  as  beer  is 
intoxicating  (Lumpkin  v,  Atlanta,  9  Ga.  App.  470,  472,  71 
S.  E.  755),  still,  in  a  prosecution  under  a  municipal  ordi- 
nance forbidding  the  keeping  of  intoxicants  for  the  pur- 
pose of  illegal  sale,  evidence  to  the  effect  that  the  beer  al- 
leged to  have  been  purchased  by  a  witness  was  the  kind  that 
he  bought  in  barrooms,  and  that  six  or  seven  bottles  of  such 
beer  would  make  him  drunk,  may  be  sufficient  to  support 
the  inference  that  the  liquid  in  question  was  intoxicating. 

Bledsoe  v.  Jackson,  16  Ga.  App.  479,  85  S.  E.  676. 


TITLE  II— SEC.  33  OF  ACT  437 

In  a  proceeding  for  contempt  for  violating  an  injunction 
against  maintaining  an  intoxicating  liquor  nuisance,  evi- 
dence that  a  liquor  sold  looked  like  beer,  tasted  like  beer, 
and  that  the  witness  believed  it  was  beer,  and  that  there 
was  malt  in  the  liquor  sold  to  another  witness,  is  sufficient 
to  justify  a  finding  of  the  sale  of  intoxicating  liquor. 
State  v.  Trione,  97  Kan.  365,  155  Pac.  29. 

In  a  prosecution  for  the  selling  of  intoxicating  malt  liq- 
uor without  license,  where  the  witnesses  testified  they  did 
not  know  whether  the  liquor  was  intoxicating  or  not,  the 
evidence  is  insufficient  to  sustain  a  conviction. 

Wales  v.  State  (Tex.  Cr.  App.),  212  S.  W.  503. 

To  Prove  Jamaica  Ginger  an  Intoxicant. — The  evi- 
dence examined  and  held  to  be  sufficient  to  sustain  a  find- 
ing that  Jamaica  ginger  is  an  intoxicating  liquor,  notwith- 
standing it  has  a  medicinal  use,  the  formula  for  its  prepa- 
rations given  in  the  United  States  dispensatory,  and  it  is 
here  classified  with  lemon,  vanilla,  cinnamon,  cloves,  cam- 
phor, cologne,  paregoric,  wintergreen  and  like  tinctures,  ex- 
tracts, and  essences. 

State  v.  Miller,  92  Kan.  994,  142  Pac.  979,  L.  R.  A. 
1917F,  238,  Ann.  Cas.  1916  B,  365. 

4.  To  PROVE  MANUFACTURE  OR  POSSESSION  OF  APPARATUS. 

Where  a  still  was  in  active  operation  and  defendants, 
charged  with  unlawful  manufacture  of  spirituous  liquors, 
were  the  only  persons  present,  jury  was  warranted  in  re- 
turning verdict  of  guilty;  the  inference  being  permissible 
that  defendants  were  in  charge  of  and  operating  the  still. 
State  v.  Ogleston  (N.  C),  98  S.  E.  537. 

Upon  a  trial  under  an  accusation  based  upon  section  22 
of  the  act  of  the  General  Assembly  of  Georgia  approved 
March  28,  1917  (Acts  of  Extraordinary  Session  March 
20-28,  1917,  p.  18),  when  the  evidence  for  the  state  shows 
that  the  apparatus  for  the  distilling  or  manufacturing  of 
whisky  was  found  upon  the  defendant's  premises,  and  that 
defendant  was  in  actual  possession  of  the  premises,  such 
evidence,  by  the  express  terms  of  the  act,  is  prima  facie 
evidence  that  the  defendant  had  knowledge  of  the  fact  that 


438  TITLE  II— SEC.  33  OF  ACT 

the  apparatus  was  located  upon  his  premises;  and  the  bur- 
den of  proof  is  then  upon  him  to  show  that  he  had  no  such 
knowledge. 

Carter  v.  State,  21  Ga.  App.  493,  94  S.  E.  630. 

The  defendant  was  indicted  for  distilling,  manufacturing 
and  making  alcoholic,  intoxicating,  and  spirituous  liquors, 
and  malted  liquor  and  mixed  liquor  and  beverages,  part  of 
same  being  alcoholic.  The  jury  were  authorized,  and  did 
find,  that  the  defendant  had  in  his  house  an  outfit  that  had 
been  when  assembled,  and  could  be,  used  to  distill  whisky, 
and  had  in  his  house  beer  that  is  used  for  distillation;  that 
such  'beer  was  intoxicating;  and  that  such  concoction  at 
the  time  it  was  so  found  was  fermenting  in  a  barrel,  over 
the  head  of  which  a  quilt  was  placed;  that  the  still  outfit 
had  been  in  recent  use,  and  that  "low  wine,"  or  the  first  run 
of  whisky,  had  been  through  the  still  and  pipes.  Such  evi- 
dence, under  appropriate  charge  of  the  court,  was  sufficient 
to  authorize  a  verdict  of  guilty  against  the  defendant.  The 
trial  judge  having  approved  the  verdict  and  no  error  of  law 
being  assigned  which  requires  a  new  trial,  the  judgment  is 
affirmed. 

Jenkins  v.  State  (Ga.  App.),  100  S.  E.  763. 

Evidence  that  apparatus  for  manufacturing  liquors  pro- 
hibited by  law  and  a  barrel  of  "beer,"  which  had  fermented 
and  was  alcoholic  and  would  produce  intoxication  were 
found  in  a  house  on  the  premises  of  the  defendant  where 
he  lived,  and  he  admitted  that  such  apparatus  and  "beer" 
were  in  his  possession,  and  that  he  intended  to  use  the  same 
for  the  purpose  of  making  liquor,  is  sufficient  to  authorize 
his  conviction  of  making  liquor  in  violation  of  law. 

Williams  v.  State  (Ga.  App.),  99  S.  E.  711. 

Illicit  Distilling. — Evidence  that  witnesses  found 
whisky,  molasses,  meal,  a  60  gallon  barrel  half  full  of  meal 
and  molasses,  and  a  20  gallon  iron  pot  on  the  fire  full  of 
stuff  which  looked  as  if  it  had  been  boiled,  and  which  de- 
fendant overturned  before  they  could  secure  a  sample,  held 
sufficient  to  sustain  a  conviction  for  illicit  distilling. 

Smiling  v.  United  States  (C  C.  A.),  258  Fed.  235. 


TITLE  II— SEC.  33  OF  ACT  439 

The  testimony  against  the  defendant  was,  in  substance, 
this:  On  March  20,  1918,  the  witnesses  Fanning,  Austin, 
and  Coleman,  federal  and  state  officers,  and  one  Whitworth, 
while  driving  along  a  community  road  in  Lexington  county 
in  a  northerly  direction  toward  Columbia,  saw  two  men 
come  out  of  a  swamp  about  250  yards  from  the  road  they 
were  on.  The  automobile  was  stopped,  and  Austin  and 
Fanning  pursued  the  two  men,  who  had  turned  and  run 
back  into  the  swamp  upon  seeing  them.  By  tracks  and  the 
noise  he  made  in  going  through  the  thick  undergrowth, 
Fanning  was  able  to  follow  defendant  across  the  swamp 
where  he  had  stopped  upon  being  hailed.  Fanning  identi- 
fied him  as  the  taller  of  the  two  men  he  had  seen  run  from 
the  opposite  side  of  the  swamp.  Defendant  was  then 
brought  back  to  the  point  from  which  he  had  run,  and 
thence  was  taken  some  50  yards  along  the  creek  or  swamp 
to  the  still  which  he  is  charged  with  having  in  his  posses- 
sion and  operating.  At  the  still,  two  fermenters,  some  beer, 
caps,  several  jugs  containing  a  small  quantity  of  illicit 
whisky,  a  worm,  and  other  distilling  apparatus  were  found. 
The  pots,  or  stills,  were  warm,  and  their  supports  too  hot 
to  handle.  Defendant  was  placed  under  arrest  and  carried 
back  to  the  automobile.  A  flask  containing  a  small  quantity 
of  illicit  whisky  was  found  on  him,  and  his  clothes  were 
soiled  with  soot  and  beer  at  the  time  of  his  arrest.  Held 
sufficient  to  support  a  conviction. 

Guignard  v.  United  States  (C.  C.  A.),  258  Fed.  607. 

Attempts  to  Manufacture. — In  a  prosecution  for  man- 
ufacturing liquor  in  violation  of  Pub.  Laws  of  N.  Car.  1917, 
c.  157,  the  state  need  not  show  spirituous  liquor  was  ac- 
tually produced  at  the  still  where  defendant  was  arrested. 
If  the  persons  operating  it  were  caught  in  the  act  of  mak- 
ing the  liquor,  they  could  be  convicted,  though  the  process 
had  not  reached  its  final  stage. 

State  v.  Homer,  174  N.  C.  788,  94  S.  E.  291. 

Under  an  indictment  for  manufacturing  intoxicating  liq- 
uor the  defendant  was  found  guilty  of  "attempting  to  make 
whisky."  The  evidence  was  amply  sufficient  to  show  that 
the  accused  had  done  more  than  make  mere  preparation  for 
the  commission  of  the  crime,  and  that  he  was  guilty  of 


440  TITLE  II— SEC.  33  OF  ACT 

overt  acts  in  furtherance  of  his  attempt  to  manufacture  in- 
toxicating liquor.  Held,  that  the  evidence  was  sufficient  to 
support  a  conviction,  and  that  the  trial  judge  did  not  err  in 
overruling  the  motion  for  a  new  trial  based  upon  the  gen- 
eral grounds  that  the  verdict  was  contrary  to  the  evidence, 
etc. 

Pruett  v.  State,  18  Ga.  App.  313,  89  S.  E.  378. 

Permitting  Distilling  Apparatus  on  Premises. — Un- 
der indictments  for  permitting  or  allowing  any  one  to  have, 
possess,  or  locate  on  his  premises  any  apparatus  for  dis- 
tilling or  manufacturing  liquor,  etc.,  evidence  that  there  was 
a  copper  still  in  running  order,  except  the  worm  and  con- 
densor,  did  not  show  that  a  "complete  still"  was  found  on 
the  premises,  as  alleged  in  indictment. 

Davis  v.  State  (Ga.  App.),  100  S.  E.  782. 

Under  a  general  indictment  for  the  possession  of  intoxi- 
cating liquors,  the  state  may  show  any  number  of  "posses- 
sions" of  the  liquors. 

Autrey  v.  State  (Ga.  App.),  99  S.  E.  389. 

5.  To  PROVE  SALE  OR  OFFERING  FOR  SALE. 

While  a  sale  may  be  proved  by  circumstantial  evidence, 
the  circumstances  must  warrant  the  inference  that  there  was 
a  seller,  a  purchaser,  and  a  consideration  for  the  thing  sold. 
Scoggin  v.  Morrilton,  124  Ark.  585,  187  S.  W.  445. 

It  is  not  necessary  that  any  particular  price  should  be 
agreed  on. 

Smith  i'.  State,  9  Ga.  App.  230,  70  S.  E.  969. 
Finch  v.  State,  6  Ga.  App.  338,  64  S.  E.  1007. 
Cage  v.  State,  11  Ga.  App.  318,  75  S.  E.  160. 

And  a  sale  on  credit  is  as  much  a  violation  of  the  law  as 
a  sale  for  cash. 

Finch  v.  State,  6  Ga.  App.  338,  64  S.  E.  1007. 
Cage  v.  State,  11  Ga.  App.  318,  75  S.  E.  160. 

It  is  immaterial  that  the  seller  made  no  profit  on  the  trans- 
action, or  that  the  liquor  did  not  belong  to  him.  Neither 
of  these  elements  is  essential  to  a  sale,  and  evidence  on 


TITLE  II— SEC.  33  OF  ACT  441 

these  points  is  immaterial  for  the  purpose  of  proving  or 
disproving  a  sale. 

Bird  v.  State  (Tex.  Cr.  App.),  206  S.  W.  844. 

"But  it  is  indispensable  to  the  maintenance  of  this  ver- 
dict and  judgment  that  there  should  have  been  substantial 
evidence  of  a  sale  or  of  an  offer  to  sell  some  of  the  whisky 
by  the  defendant.  'A  sale  is  a  contract  for  the  transfer  of 
property  from  one  person  to  another  for  a  valuable  con- 
sideration.' 7  Words  and  Phrases,  'Sale,'  pp.  6291,  6292. 
'To  constitute  such  a  sale,  there  must  be  the  assent  of  the 
two  parties ;  there  must  be  a  vendor  and  a  vendee.  But  no 
words  need  be  proved  to  have  been  spoken.  A  sale  may 
be  inferred  from  the  acts  of  the  parties,  and  no  disguise 
which  the  parties  may  attempt  to  throw  over  the  transac- 
tion, with  a  view  of  evading  the  penalty  of  the  law,  can 
avail  them,  if  in  truth  such  sale  is  found  to  have  taken 
place.'  Commonwealth  v.  Thayer,  49  Mass.  (8  Mete.)  525, 
526.  But  one  party  cannot  make  a  contract  of  sale.  No 
such  contract  can  be  made  without  assent  of  the  minds  of 
two  parties  at  the  same  time  to  the  sale  and  to  the  terms  of 
the  sale,  to  the  subject  matter  and  the  consideration  of  the 
sale;  and  as  the  alleged  contract  here  was  illegal,  and  its 
making  criminal,  the  legal  presumption  was  that  the  de- 
fendant did  not  make  it,  and  this  presumption  prevailed 
until  he  was  proved  to  have  done  so  beyond  a  reasonable 
doubt.  The  burden  was  upon  the  government  to  make  this 
proof,  and  evidence  that  is  as  consistent  with  innocence  as 
with  guilt  is  insufficient  to  sustain  a  conviction." 

Scoggins  v.  United  States   (C.  C.  A.),  255  Fed.  825, 
827. 

Evidence  that  money  passed  and  whisky  was  delivered 
as  a  single  transaction  is  sufficient  to  support  a  verdict. 
Donaldson  v.  State,  3  Ga.  App.  451,  60  S.  E.  115. 
Hollingsworth  v.  State,  17  Ga.  App.  725,  88  S.  E.  213. 
Cowart  v.  State,  18  Ga.  App.  677,  90  S.  E.  286. 

Evidence   Held  Sufficient  to   Show  Guilt.— Evidence 

showing  that  witness  laid  a  dollar  on  defendant's  leg  while 
latter  was  sitting  in  an  automobile,  and  that  they  went  to 
defendant's  house,  and  defendant  gave  him  a  pint  bottle, 
shown  to  contain  whisky,  all  of  which  the  defendant  de- 


442  TITLE  II— SEC.  33  OF  ACT 

nied,  held  to  justify  a  conviction  on  charge  of  engaging  in 
business  of  selling  intoxicating  liquors  without  license;  the 
question  being  one  of  credibility  of  witnesses. 

State  v.  Hays,  38  S.  D.  546,  162  N.  W.  311. 

Uncontradicted  testimony  that  defendant,  while  operat- 
ing a  rooming  house,  told  guests  that  he  would  have  some 
whisky  the  following  day,  which  he  would  retail,  and  that 
guest,  given  a  marked  bill  by  police,  gave  it  to  defendant 
and  received  a  bottle  of  whisky  and  his  change,  and  that 
whisky  was  found  in  the  house,  warranted  a  conviction  of 
an  unlawful  sale. 

Holden  v.  State  (Okla.  Cr.  App.),  180  Pac.  969. 

Corroborating  Prima  Facie  Presumption  from  Pos- 
session of  Tax  Receipt. — In  a  prosecution  for  unlaw- 
fully selling  intoxicating  liquors,  evidence,  when  coupled 
with  the  prima  facie  presumption  of  guilt  raised  by  ac- 
cused's possession  of  a  federal  license,  held  sufficient  to 
support  a  conviction. 

Haar  v.  State,  14  Ga.  App.  548,  81  S.  E.  811. 

Evidence  of  Offer  to  Sell. — Evidence  of  a  single  sale  of 
whisky  is  sufficient  to  sustain  a  charge  of  offering  it  for 
sale,  since  an  offer  for  sale  is  necessarily  included  in  the 
completed  sale ;  it  being  none  the  less  an  offer,  even  though 
it  was  made  in  response  to  an  indicated  desire  by  another 
to  buy. 

Slaten  v.  State,  10  Ala.  App.  185,  65  So.  85. 

Evidence  Held  Insufficient  to  Show  Guilt. — In  a  pros- 
ecution, under  Comp.  St.  §§  5971,  5973,  for  selling  whisky 
in  less  quantities  than  five  wine  gallons  without  paying  a 
tax  as  a  retail  liquor  dealer,  evidence  held  insufficient  to 
show  the  sale  and  sustain  a  conviction. 

Scoggins  v.  United  States  (C.  C.  A.),  255  Fed.  825. 

In  a  prosecution  for  the  selling  of  malt  intoxicating  liq- 
uor without  license,  a  showing  only  by  witness'  belief  that 
defendant  did  not  have  a  license  is  insufficient  to  sustain  a 
conviction ;  the  statute  requiring  a  license  for  the  selling 
of  malt  drinks,  both  intoxicating  and  nonintoxicating. 
Wales  v.  State  (Tex.  Cr.  App.),  212  S.  W.  503. 


TITLE  II— SEC.  33  OF  ACT  443 

In  prosecution  for  violating  prohibition  law,  by  selling  or 
otherwise  disposing  of  bottle  of  whisky  to  certain  person, 
evidence  that  witness  had  visited  defendant  with  such  per- 
son, who  had  produced  bottle  of  whisky  after  the  two  had 
left  defendant  and  gone  about  quarter  of  mile  from  her 
house,  is  insufficient  for  submission  to  jury  of  whether  liq- 
uor had  been  received  from  defendant,  where  witness  did 
not  know  but  what  such  person  had  liquor  before  going  to 
defendant's  house. 

Braxton  r.  State  (Ala.  App.),  82  So.  657. 
6.  To  PROVE  UNLAWFUL  POSSESSION. 

See  also  ante,  "Presumption  and  Burden  of  Proof." 

Necessity  for  Proving  Guilty  Knowledge,  Purpose 
or  Intent. — \Yhether  mere  proof  of  possession  of  intoxi- 
cating liquors  above  a  certain  specified  quantity  or  in  any 
quantity  is  sufficient  to  make  out  a  case  against  the  accused 
depends  upon  the  statute  in  that  jurisdiction.  Unless  there 
is  some  provision  in  the  statute  upon  which  to  base  it,  mere 
proof  of  possession  by  the  accused  of  intoxicating  liquor, 
without  proof  of  the  purpose  cf  selling  or  giving  away  the 
same  in  violation  of  law,  will  not  support  a  conviction. 

Jackson  v.  State,  107  Miss.  153,  65  So.  123. 

McAlester  v.  State  (Okla.  Cr.  App.),  174  Pac.  1106, 
1107,  and  cases  cited. 

"To  justify  or  sustain  a  conviction  of  having  possession 
of  intoxicating  liquors  with  intent  to  violate  any  of  the 
provisions  of  the  prohibitory  law,  there  must  be  evidence 
sufficient  to  prove  possession,  and  also  evidence  of  the  crim- 
inal intent.  When  the  verdict  is  manifestly  contrary  to  the 
evidence,  the  judgment  of  conviction  will  be  reversed." 
Ward  v.  State  (Okla.  Cr.  App.),  175  Pac.  60. 

The  evidence  in  a  Georgia  case  conclusively  showing  that 
the  intoxicating  liquor  was  found  in  the  defendant's  place, 
but  that  it  was  there  without  his  knowledge  or  consent,  and 
that  he  was  in  no  wise  connected  therewith,  the  verdict  of 
conviction  was  held  to  be  without  evidence  to  support  it, 
and  was  therefore  unauthorized  by  law. 

Sewell  v.  State,  11  Ga.  App.  754,  75  S.  E.  1135. 


444  TITLE  II— SEC.  33  OF  ACT 

Where  there  was  no  evidence  to  authorize  the  inference 
that  the  accused  in  any  way  acquiesced  or  participated  in 
the  illegal  sales  which  necessarily  constituted  the  eviden- 
tiary foundation  of  the  charge  of  keeping  intoxicants  for 
illegal  sale,  and  no  testimony  which  indicated  that  he  knew 
that  these  sales  were  to  be  made  or  had  been  made,  the  con- 
viction was  held  to  be  unwarranted. 

Pitts  v.  Atlanta,  14  Ga.  App.  399,  81  S.  E.  249,  distin- 
guishing Wright  v.  State,  14  Ga.  App.  185,  80  S.  E. 
544;  Deal  v.  State,  14  Ga.  App.  121,  80  S.  E.-537. 

But  under  the  ruling  of  the  majority  of  the  court  in  Co- 
hen v.  State,  7  Ga.  App.  5,  65  S.  E.  1096,  one  who  inten- 
tionally carries  whisky  to  his  place  of  business,  and  keeps  it 
there  for  what  reason  or  for  what  purpose,  may  be  con- 
victed of  the  offense  of  keeping  intoxicating  liquors  on  hand 
at  his  place  of  business. 

Nowell  v.  State,  18  Ga.  App.  143,  88  S.  E.  909. 

Sufficiency  to  Show"  Guilty  Knowledge,  Purpose  or  Intent ; 
Generally. 

Evidence  Held  Sufficient. — In  a  prosecution  for  stor- 
ing intoxicating  liquors,  where  it  appeared  that  the  building 
in  which  the  hiding  place  was  found  had  formerly  been  used 
as  a  saloon  by  the  present  occupant;  that  the  liquor  had 
affixed  to  it  a  tag  with  the  name  of  the  accused;  that  the 
quantities  were  too  large  to  justify  the  inference  that  it 
was  kept  for  medicinal  purposes ;  that  the  opening  to  the 
hiding  place  was  under  a  rug  in  the  floor;  that  it  bore  evi- 
dence of  having  been  frequently  opened ;  that  intoxicating 
liquor  had  been  served  on  the  premises ; — it  was  not  error 
to  fail  to  direct  a  verdict  of  acquittal. 

People  v.  Galliari,  196  Mich.  475,  163  N.  W.  154. 

The  testimony  of  several  witnesses,  to  the  effect  that 
when  they  made  a  raid  on  defendant's  place  of  business 
they  found  him  in  the  rear  of  his  store  breaking  up  bottles 
of  corn  whisky,  authorized  the  verdict  of  guilty  of  having 
liquor  in  his  possession ;  and  the  trial  judge  did  not  err  in 
overruling  the  motion  for  new  trial. 

Parks  v.  State,  21  Ga.  App.  506,  94  S.  E.  628,  629. 


TITLE  II— SEC.  33  OF  ACT  445 

Where  there  was  evidence  that  liquor  in  unlawful  quan- 
tities was  found  on  premises  searched  by  officers,  and  de- 
fendant admitted  that  premises  and  liquor  seized  were  his, 
and  made  no  defense  to  prosecution  for  its  unlawful  pos- 
session, a  conviction  would  not  'be  disturbed  for  want  of 
sufficient  proof  of  the  corpus  delicti. 

High  v.  State  (Okla.  Cr.  App.),  180  Pac.  572. 

Evidence  held  sufficient  to  show  unlawful  possession  with 
intent  to  sell  in  the  following  cases: 

Davis  v.  State  (Okla.  Cr.  App.),  182  Pac.  909. 
Pate  v.  State  (Okla.  Cr.  App.),  180  Pac.  559. 
Belchner  v.  State  (Okla.  Cr.  App.),  183  Pac.  925. 
State  v.  Baldwin  (N.  C.),  100  S.  E.  345. 
Stubblefield  v.  State  (Okla.  Cr.  App.),  180  Pac.  252. 
Hendrix  v.  State  (Ga.  App.),  100  S.  E.  55. 
Stubblefield  v.  State  (Okla.  Cr.  App.),  180  Pac.  251. 
Morris  v.  State  (Okla.  Cr.  App.),  180  Pac.  561. 
Davis  v.  State  (Okla.  Cr.  App.),  182  Pac.  908. 

Evidence  Sufficient  to  Go  to  the  Jury. 

Freeman  v.  State  (Okla.  Cr.  App.),  183  Pac.  626. 
State  v.  Bachtold  (Wash.),  180  Pac.  896. 

Under  Rem.  Code  1915,  §  6262 — 23,  making  possession 
of  more  than  two  quarts  of  intoxicating  liquor  prima  facie 
evidence  that  it  was  held  for  unlawful  sale,  proof  that  23 
quarts  of  whisky  were  found  in  defendant's  possession  is 
sufficient  to  take  to  the  jury  the  question  of  defendant's  in- 
tention to  sell. 

State  v.  Conner  (Wash.),  182  Pac.  602. 

Evidence  Insufficient  to  Sustain  Conviction.— The 
unloading  by  a  public  drayman  of  a  barrel  of  whisky  on  a 
vacant  lot  is  not  sufficient  proof,  against  the  owner  of  the 
lot,  of  the  unlawful  possession  with  intent  to  sell  whisky 
to  warrant  a  conviction  of  the  owner  of  such  lot,  in  the 
absence  of  proof  that  the  whisky  belonged  to  him,  or  that 
acts  of  ownership  were  exercised  by  him  over  the  whisky. 
Telico  v.  State,  13  Okla.  Cr.  App.  608,  166  Pac.  76. 

The  accused  was  convicted  of  keeping  intoxicating  liq- 
uors in  his  place  of  business.  The  evidence  shows  that  he 


446  TITLE  II— SEC.  33  OF  ACT 

received  a  package  of  whisky  by  express  and  delivered  it 
to  a  hackman,  with  instruction  to  take  it  to  his  residence 
and  to  deliver  it  to  his  wife.  The  hackman  carried  the 
whisky  to  the  home  of  the  accused,  and,  finding,  no  one 
there,  took  it  across  the  street  and  deposited  it  in  a  restau- 
rant, which  was  being  conducted  by  the  accused.  The  ac- 
cused was  absent,  and  did  not  know  that  the  hackman  had 
not  left  the  whisky  at  his  residence,  but  had  deposited  it 
in  the  restaurant.  About  10  minutes  after  the  whisky  was 
left  in  the  restaurant,  its  presence  was  discovered  by  a  po- 
liceman, and  the  accused  was  arrested  while  on  his  way  to 
the  restaurant  from  some  point  in  the  city.  There  was  no 
evidence  that  the  accused  knew  until  after  his  arrest  that 
the  whisky  had  been  placed  in  the  restaurant.  Held  that 
the  conviction  was  unauthorized,  and  should  have  been  set 
aside  on  motion  for  a  new  trial. 

Johnson  v.  State,  13  Ga.  App.  654,  79  S.  E.  758. 
Smith  v.  State  (Okla.  Cr.  App.),  182  Pac.  730. 

Inference  from  Mere  Possession  Not  Conclusive.— 
Where  one  is  charged  with  the  offense  of  keeping  on  hand 
at  his  place  of  business  alcoholic,  spirituous,  malt,  or  intox- 
icating liquors  prohibited  by  law,  and  intoxicating  liquors 
are  shown  to  have  been  found  at  his  place  of  business,  such 
evidence  is  sufficient  to  support  the  inference  that  the  for- 
bidden liquors  were  kept  by  the  owner  of  the  place  of 
business,  but  such  inference  is  not  conclusive,  for  it  may  be 
shown,  among  other  things  that  the  forbidden  liquors  were 
not  the  property  of  the  accused,  that  they  had  been  tem- 
porarily deposited  in  his  place  of  business  by  some  other 
person  without  his  knowledge  or  consent  and  that  the 
owner  of  the  place  of  business  had  no  knowledge  of  their 
presence  or  existence. 

Lewis  v.  State,  6  Ga.  App.  205,  64  S.  E.  701. 
Autrey  v.  State,  18  Ga.  App.  13,  88  S.  E.  715. 

Property  Not  Used  Exclusively  as  Dwelling. — Where 
a  building  was  not  used  exclusively  for  a  dwelling,  the 
keeping  therein  of  alcoholic  liquors  or  beverages,  forbid- 
den by  the  laws  of  the  state  to  be  manufactured,  sold,  or 
otherwise  disposed  of,  was  pr'mia  facie  evidence  that  the 


TITLE  II— SEC.  33  OF  ACT  447 

same  was  kept  for  sale  or  with  intention  to  sell  contrary  to 

law. 

Jones  r.  Montgomery  (Ala.  App.),  77  So.  969. 
Thomas  v.  State,  13  Ala.  App.  246,  68  So.  799. 
Johns  v.  State,  13  Ala.  App.  283,  69  So.  259. 

Evidence  of  such  possession  at  a  place  other  than  in  his 
dwelling  while  sufficient  to  sustain  a  conviction  of  keep- 
ing or  having  in  possession  for  sale,  does  not  sustain  a  con- 
viction of  an  actual  sale. 

Johns  v.  State,  13  Ala.  App.  283,  69  So.  259. 

Sufficiency  to  Prove  Place  a  Dwelling. — Where  ac- 
cused lived  in  a  house  containing  two  rooms,  one  of  which 
was  not  occupied,  and  the  other  containing  a  bed,  stove, 
trunk,  and  an  ice  box,  and  the  sheriff  found  in  the  house  a 
number  of  barrels  labeled  "beer,"  and  containing  bottles 
labeled  "beer,"  and  also  beer  bottles  in  the  ice  box,  the  jury 
could  find  that  the  house  was  a  place  not  used  "exclusively" 
as  a  dwelling  within  Act  of  1909  (Sp.  Sess.)  p.  64,  §  4  pro- 
viding that  the  keeping  of  prohibited  liquors  in  a  building 
not  used  exclusively  for  a  dwelling  shall  be  prima  facie  evi- 
dence that  they  are  kept  for  sale. 

Carmichael  v.  State,  11  Ala.  App.  209,  65  So.  694. 

Proof  of  Actual  Sale  Unnecessary. — The  offense  of 
keeping  intoxicating  liquors  for  unlawful  sale  may  be  es- 
tablished without  evidence  of  either  a  sale  or  an  attempt  to 
sell. 

Commonwealth  v.  Tay,  146  Mass.  146,  15  N.  E.  503. 

Commonwealth  v.  Ahern,  228  Mass.  547,  117  N.  E.  827. 

This  is  also  true  under  the  Kentucky  statute;  evidence 
of  possession  with  intent  to  sell  being  sufficient. 

\Yilson  v.  Commonwealth,  181  Ky.  370,  205  S.  W.  391. 

Proof  of  One  Sale  Sufficient. — Where  one  is  charged 
with  keeping  a  liquor  nuisance,  proof  that  liquor  was  ac- 
tually sold  by  him  upon  his  hotel  premises,  is  conclusive 
proof  that  he  kept  such  liquor  with  the  intent  to  sell. 

State  v.  Jarvis  (la.),  165  N.  W.  61. 


448  TITLE  II— Sec.  33  OF  ACT 

Where  the  accused  is  charged  with  a  violation  of  a  valid 
municipal  ordinance  prohibiting  the  keeping  in  possession 
of  intoxicating  liquors  for  the  purpose  of  illegal  sale,  the 
possession  of  the  liquor  and  proof  of  one  sale  will  author- 
ize a  conviction. 

Sawyer  v.  Blakely,  2  Ga.  App.  159,  58  S.  E.  399. 

Cooper  v.  Ft.  Valley,  13  Ga.  App.  169,  78  S.  E.  1097. 

Seabrooks  v.  Macon,  17  Ga.  App.  348,  86  S-  E.  781. 

Jefferson  v.  Perry,  18  Ga.  App.  689,  90  S.  E.  365. 

"Under  repeated  rulings  of  the  Supreme  court  and  of  this 
court,  one  sale  of  whisky  is  sufficient  to  authorize  a  mayor 
or  recorder,  sitting  as  both  judge  and  jury,  to  find  that  the 
seller  had  the  whisky  for  the  purpose  of  sale." 

Jefferson  v.  Perry,  18  Ga.  App.  690,  90  S.  E.  366. 

In  prosecution  under  Rev.  St.  of  Me.  c.  23,  §  1,  provid- 
ing that  all  places  used  for  the  illegal  sale  or  keeping  of  in- 
toxicants are  common  nuisances,  the  jury  may,  from  a  sin- 
gle act  of  keeping  or  selling,  be  justified  in  finding  a  custom 
or  habit,  or  keeping,  or  selling  essential  to  conviction. 
State  v.  Gastonguay  (Me.),  105  Atl.  402. 

Sufficiency  of  Railway  or  Express  Receipts  to  Show 
Unlawful  Possession  or  Receipt. — In  prosecution  for  the 
unlawful  receipt  of  liquor  from  a  transportation  company, 
affidavits  of  accused,  signed  when  receipting  for  liquor, 
were  insufficient,  standing  alone,  to  prove  the  corpus  delicti. 
Cochran  v.  Commonwealth,  122  Ya.  801,  94  S.  E.  329. 

And  in  such  prosecution  express  records,  showing  receipt, 
by  some  person  having  the  same  name  as  accused,  of  whisky 
in  excess  of  one  quart  within  one  calendar  month,  were 
prima  facie  evidence  of  the  corpus  delicti,  which,  in  the  ab- 
sence of  rebutting  evidence,  became  conclusive. 

Cochran  v.  Commonwealth,  122  Va.  801,  94  S.  E.  329. 

Large  or  Unusual  Quantity  as  Evidence  of  Unlaw- 
ful Purpose. — Ten  gallons  of  whisky  is  an  unusual  quan- 
tity to  be  found  in  a  private  dwelling  house,  within  Code, 
§  2427,  making  finding  of  unusual  quantities  presumptive 
evidence  that  the  liquors  are  kept  for  unlawful  sale. 
McMillan  v.  Anderson,  183  la.  873,  167  N.  W.  599. 


TITLE  II— SEC.  33  OF  ACT  449 

Under  a  statute  providing  that  the  fact  that  any  person 
not  authorized  to  sell  intoxicating  liquors,  shall  keep  such 
liquor  in  unusual  quantities,  shall  be  presumptive  evidence 
of  the  maintenance  of  a  liquor  nuisance,  where  defendant 
had  on  hand  230  pints  of  whisky,  22  pints  of  brandy  and  24 
pints  of  gin,  the  presumption  arose  in  his  case. 
State  v.  Kiefer,  172  la.  306,  151  N.  W.  440. 

"Evidence  that  the  defendants,  acting  conjointly,  every 
day  or  so  for  several  months  received  intoxicating  liquors 
in  large  quantities,  in  three  days  aggregating  6  casks 
of  beer  and  49  cases  of  whisky,  shipped  to  them  in  fictitious 
names,  and  so  receipted  for  by  the  defendants,  is  sufficient 
evidence  to  sustain  the  finding  of  the  jury  that  the  defend- 
ants had  such  beer  and  whisky  with  intent  to  sell  the  same." 
Conley  v.  State  (Okla.  Cr.  App.),  179  Pac.  480. 

Proof  that  defendant  had  in  his  possession  25  gallons  of 
\vhisky  made  a  prima  facie  case  that  the  liquor  was  kept  for 
purposes  of  unlawful  sale  or  disposition. 

State  v.  Bachtold  (Wash.),  180  Pac.  8%. 

In  a  prosecution  for  carrying  liquor  on  defendant's  per- 
son, or  in  a  suit  case  with  intent  to- sell  or  give  away,  that 
defendant  carried  four  gallons  of  liquor  in  a  suit  case  es- 
tablished prima  facie  that  he  kept  such  liquors  with  intent 
to  violate  the  statute  under  the  presumption  established  by 
Code,  §  2427. 

State  v.  Butler  (la.),  173  X.  W.  239. 

That  a  person  subject  to  a  liquor  injunction  carried  48 
quarter  pint  bottles  of  whisky  in  a  sack,  which  he  dropped 
and  ran  when  an  officer  was  seen,  was  ample  proof  of  in- 
tent to  use  the  liquor  unlawfully,  and  so  to  violate  the  in- 
junction. 

Bird  v.  Sears  (la.),  173  X.  W.  925. 

"The  three  pints  of  whisky  discovered  at  the  defendant's 
home  were  not  sufficient  in  quantity  to  raise  a  legal  pre- 
sumption that  he  had  the  same  for  an  unlawful  purpose, 
and  the  prosecuting  witness,  Boyd,  is  nowhere  corroborated 
by  any  competent  evidence  that  tends  to  establish  the  fact 
that  the  defendant  had  any  intention  whatever  to  unlaw- 
—29 


450  TITLE  II— SEC.  33  OF  ACT 

fully  sell  the  three  pints  of  whisky  found  at  his  home,  or 
any  other  whisky.  The  corroboration  of  the  accomplice  is 
only  to  the  effect  that  the  defendant  had  three  pints  of 
whisky  at  his  home.  Proof  of  possession  merely  is  not 
sufficient  to  authorize  a  conviction.  Lindsey  v.  State,  9 
Okla.  Cr.  App.  730,  132  Pac.  1194;  Ren  v.  State,  9  Okla.  Cr. 
App.  671,  132  Pac.  1131 ;  Johnson  v.  State,  6  Okla.  Cr.  App. 
490,  119  Pac.  1019;  Guiaccimo  v.  State,  5  Okla.  Cr.  App. 
371,  115  Pac.  129;  Quinn  v.  State,  8  Okla.  Cr.  App.  478, 
128  Pac.  1104." 

McAlester  v.  State  (Okla.  Cr.  App.),  174  Pac.  1106, 
1107. 

7.  To  PROVE  INTRODUCTION,  TRANSPORTATION   OR  DELIVERY. 

Sufficiency  to  Raise  Prima  Facie  Presumption. — In 

a  prosecution  for  transporting  contraband  liquor,  where  de- 
fendant was  found  at  a  church  selling  liquor  from  bottles 
in  his  possession,  the  presumption  is  that  he  carried  it  there. 

State  v.  Pope,  79  S.  C.  87,  60  S.  E.  234. 

In  a  prosecution  for  transporting  prohibited  liquors,  the 
possession  of  the  liquors  by  the  person  to  whom  defendant 
was  charged  to  have  transported  them,  was  prima  facie  evi- 
dence of  ownership. 

Pappenburg  v.  State,  10  Ala.  App.  224,  65  So.  418. 

To  Warrant  Instruction  or  Take  Case  to  Jury. — In 
a  prosecution  for  bringing  intoxicating  liquors  into  the 
state,  evidence  that  accused  when  arrested  while  driving 
from  the  state  line  with  intoxicating  liquors,  stated  that  it 
cost  him  an  additional  amount  to  have  such  liquors  brought 
and  delivered  to  him  within  the  state,  warrants  an  instruc- 
tion that  persons  aiding,  etc.,  in  the  introduction  of  liquor 
into  the  state  are  guilty  as  principals. 

Murray  v.  State,  19  Ariz.  49,  165  Pac.  315. 

Evidence  in  a  prosecution  for  introducing  liquors  into  a 
prohibition  state  held  sufficient  to  justify  submission  of  the 
case  to  the  jury. 

Weems  v.  United  States  (C.  C.  A.),  257  Fed.  57. 


TITLE  II— SEC.  33  OF  ACT  451 

To  Sustain  Conviction.— Testimony  of  a  police  cap- 
tain that  on  certain  date  he  met  defendant  near  corner  of 
Third  and  Santa  Fe  Streets,  and  said  to  him,  "Charley,  I 
want  that  whisky,"  and  searched  defendant,  and  found  a 
quart  and  two  half  pints  of  whisky  on  him,  supported  a 
conviction  for  unlawful  conveyance  of  whisky  to  corner  of 
Third  and  Santa  Fe  streets. 

Jones  v.  State  (Okla.  Cr.  App.),  183  Pac.  519. 

In  a  prosecution  for  unlawfully  transporting  intoxicat- 
ing liquor,  evidence  that  defendants  were  appprehended  on 
a  road  in  a  Ford  car  containing  about  200  quarts  of  whisky, 
gin,  and  wine,  and  that  one  said  they  came  from  Wichita 
Falls  and  were  going  to  Oklahoma  City,  is  sufficient  to  sus- 
tain a  verdict  of  guilty. 

High  v.  State  (Okla.  Cr.  App.),  182  Pac.  907. 

Merely  from  the  common  knowledge  regarding  the  na- 
ture of  the  Mississippi  and  its  winding  channel,  the  jury 
would  be  entitled  to  infer  that  a  considerable  part  of  the 
journey  down  it,  for  over  100  miles  constantly  opposite 
Tennessee,  of  defendant's  light  draft  small  power  boat,  the 
natural  effort  of  which  would  be  to  make  as  straight  a 
course  as  possible,  had  been  within  the  limits  of  Tennes- 
see. (On  a  charge  of  bringing  liquor  within  limits  of  dry 
state.) 

Bishop  v.  United  States  (C.  C.  A.),  259  Fed.  195. 

In  a  prosecution  for  introducing  intoxicating  liquor  into 
an  Oklahoma  county,  evidence  held  sufficient  to  sustain  the 
conviction. 

Bradley  v.  United  States  (C.  C.  A.),  254  Fed.  289. 
Bishop  v.  United  States  (C.  C.  A.),  259  Fed.  195. 
Whitley  v.  State  (Ark.),  215  S.  W.  703. 
Ross  v.  State  (Okla.  Cr.  App.),  180  Pac.  573. 
Hale  v.  State  (Okla.  Cr.  App.),  181  Pac.  735. 

Evidence  Insufficient. — Where  federal  officers  shot  one 
of  a  party  in  attempting  to  arrest  such  persons  in  Osage 
county,  Okl.,  for  suspected  violation  of  laws  relating  to  in- 
toxicating liquors,  evidence  held,  in  habeas  corpus  proceed- 
ings in  the  federal  court,  to  show  that  none  of  the  party,  in 


452  TITLE  II— SEC.  33  OF  ACT 

the  presence  of  the  officers,  committed  the  offense  of  intro- 
ducing intoxicating  liquor  into  the  county. 

Castle  v.  Lewis  (C.  C.  A.),  254  Fed.  917,  918. 

In  a  prosecution  for  attempting  to  introduce  intoxicating 
liquor  into  the  state  in  violation  of  Const,  art.  23,  §  1,  evi- 
dence held  insufficient  to  show  that  that  defendant,  who  was 
apprehended  at  the  state  boundary  line,  committed  any  act 
within  the  state  for  the  purpose  of  introducing  intoxicat- 
ing liquors  into  the  state. 

Baca  v.  State,  18  Ariz.  350,  161  Pac.  686. 
Carrico  v.  State  (Okla.  Cr.  App.),  180  Pac.  870. 

Unlawful  Delivery — Scienter. — To  prove  that  a  car- 
rier "knowingly"  delivered  liquor  to  a  person  in  dry  ter- 
ritory, or  to  a  minor,  in  violation  of  Ky.  St.  2596b,  proof 
of  such  facts  and  circumstances  as  would  excite  the  sus- 
picion of  an  ordinarily  prudent  person,  and  such  as  might 
have  been  verified  by  a  reasonable  effort,  is  sufficient. 

Adams  Exp.  Co.  v.  Commonwealth,  177  Ky.  449,  197 
S.  W.  957. 

Unlawful  Delivery— Name  of  Expressman. — Although 
it  may  not  be  necessary,  in  an  accusation  of  this  kind,  to 
name  the  agent  of  the  express  company  who  delivered  the 
liquor,  yet  when  the  name  is  alleged  it  becomes  "descriptive 
of  the  identity  of  that  which  is  legally  essential  to  the  claim 
or  charge,"  and  cannot  be  rejected  as  surplusage,  but  must 
be  proved  as  alleged. 

Southern  Exp.  Co.  v.  State  (Ga.  App.),  97  S.  E.  550. 

8.    MISCELLANEOUS  QUESTIONS  OF  SUFFICIENCY. 

Preponderance  of  Witnesses. — In  a  prosecution  for 
unlawfully  selling  intoxicating  liquor,  where  the  witnesses 
in  behalf  of  defendant  outnumbered  those  for  the  state,  but 
the  circumstances  of  defendant's  evidence  indicated  an 
attempt  to  frame  favorable  evidence,  the  jury  was  war- 
ranted in  finding  a  verdict  of  guilty,  notwithstanding  the 
numerical  preponderance  of  defendant's  evidence. 

State  v.  Walters,  178  la.  1108,  160  N.  W.  821. 


TITLE  II— SEC.  33  OF  ACT  453 

Confessions  and  Plea  of  Guilty. 

If  the  defendant  has  pleaded  guilty  and  there  is  evidence 
that  he  sold  intoxicating  liquors  in  violation  of  the  statute, 
he  is  not  in  a  position  to  complain  that  the  evidence  was 
not  sufficiently  specific  in  showing  his  guilt. 

Terretto  v.  State  (Tex.  Cr.  App.),  215  S.  W.  329. 
Berryman  v.  United  States  (C.  C.  A.),  259  Fed.  208. 
Robilio  v.  United  States  (C.  C.  A.),  259  Fed.  101. 

Sufficiency  to  Overcome  Statutory  Presumption. 

See  also  ante,  "Weight  of  Statutory  Presumption." 
State  v.  Butler  (la.),  173  N.  W.  239. 

In  action  to  enjoin  maintenance  of  liquor  nuisance,  de- 
fendant's mere  denial  that  the  36  quarts  of  whisky  and 
the  96  quarts  of  beer,  found  in  his  residence  garage,  were 
kept  for  purpose  of  sale,  is  insufficient,  under  circumstances 
of  case,  to  overcome  presumption  that  it  was  kept  for  pur- 
pose of  illegal  sale. 

McMillan  v.  Miller  (la.),  174  N.  W.  259. 

Proof  of  Former  Conviction;  Second  Offense,  etc.— 
Where  the  record  of  a  previous  conviction  relied  on  to  sup- 
port a  charge  of  persistent  violation  discloses  that  the  con- 
viction was  for  violation  of  the  prohibitory  liquor  law,  the 
record  is  prima  facie  proof  which  warrants  a  finding  of 
previous  conviction,  without  introducing  the  complaint  or 
information  on  which  it  was  based. 

State  v.  Schmidt,  92  Kan.  457,  140  Pac.  843. 

Evidence  that  previous  to  filing  of  information  defend- 
ant was  convicted  and  sentenced  for  violation  of  prohibitory 
liquor  laws,  and  that  subsequent  thereto  quantities  of  beer 
and  whisky  were  found  in  his  residence  at  time  averred  in 
present  information,  showed  a  second  violation  of  prohibi- 
tory liquor  law  beyond  a  reasonable  doubt. 

Browder  v.  State  (Okla.  Cr.  App.),  180  Pac.  571. 

Conspiracy  to  Violate  Statute. — Evidence  that  defend- 
ant had  whisky  for  sale,  although  he  had  not  paid  special 


454  TITLE  II— SEC.  33  OF  ACT 

tax  as  a  retail  liquor  dealer,  and  sold  whisky  to  a  third  per- 
son through  an  acquaintance,  who  brought  the  orders,  held 
sufficient  to  sustain  a  verdict  for  conspiracy  with  the  ac- 
quaintance to  violate  the  statute. 

Villers  v.  United  States  (C.  C.  A.),  255  Fed.  75. 

Evidence  Showing  Trick  or  Device  to  Avoid  Color 
of  Sale. — In  a  prosecution  for  selling  intoxicating  liquor  in 
a  county  where  the  local  option  law  was  in  force,  a  trick, 
such  as  leaving  money  on  the  top  of  a  table  to  pay  for  liq- 
uor, will  not  be  permitted  to  work  a  miscarriage  of  justice. 
Huddleston  v.  Commonwealth,  171  Ky.  261,  188  S.  W. 
366. 

Evidence  Identifying  Accused  or  Connecting  Him 
with  Sale  or  Unlawful  Possession. — Where  on  a  trial  for 
selling  intoxicating  liquor,  the  person  who  bought  the  liquor 
testified  that  to  the  best  of  his  recollection  the  accused,  with 
whom  he  had  no  acquaintance,  was  the  one  who  sold  the  liq- 
uor, but  that  he  could  not  say  positively  that  he  was  the 
man,  there  was  positive  evidence  of  the  identity  of  accused 
as  the  guilty  person  sufficient  for  submission  to  the  jury. 
Hollingworth  v.  State,  3  Ala.  App.  153,  57  So.  501. 

In  a  prosecution  for  selling  intoxicating  liquors  in  prohi- 
bition territory,  testimony  by  the  alleged  buyer  that  he  found 
the  whisky  in  his  barn,  but  did  not  know  to  whom  it  be- 
longed, and  that  he  had  previously  loaned  money  to  the  de- 
fendant, but  nothing  was  said  at  that  time  about  whisky,  is 
not  sufficient  to  sustain  a  conviction,  although  a  justice  of 
the  peace  testified  that  the  witness  had  sworn  before  him 
that  he  purchased  the  whisky  from  the  defendant. 

Barnhill  v.  State,  74  Tex.  Cr.  App.  97,  167  S.  W.  348. 

In  proceedings  for  contempt  for  violation  of  a  liquor  in- 
junction, evidence  identifying  the  person  proceeded  against 
with  a  person  who  carried  a  sack  full  of  quarter  pint  bottles 
of  whisky  is  sufficient  to  sustain  an  adjudication  of  contempt. 
Bird  v.  Sears  (la.),  173  N.  W.  925. 

Sale  by  Firm,  Partner,  Agent,  Employee,  Child,  etc. 

— In  a  prosecution  for  illegally  engaging  in  the  business  of 


TITLE  II— SEC.  33  OF  ACT  455 

selling  intoxicants  under  an  information  charging  defend- 
ant with  having  committed  the  offense,  evidence  showing 
the  acts  to  have  been  done  by  means  of  agents  or  employees 
of  defendant  is  proper  and  sufficient  to  sustain  conviction, 
but  it  is  necessary  to  identify  the  seller  as  the  agent  or  em- 
ployee of  defendant,  or  at  least  to  adduce  evidence  from 
which  the  jury  may  reasonably  infer  such  connection  be- 
tween them. 

State  v.  Otto,  38  S.  D.  353,  161  N.  W.  340. 

The  fact  that  one  who  was  behind  the  counter  of  a  "near 
beer"  saloon  sold  whisky  without  hindrance  or  protest  on 
the  part  of  the  proprietor  or  any  of  his  agents  may  author- 
ize the  inference  that  the  seller  is  an  agent  of  the  proprietor 
of  the  saloon  and  it  is  certainly  sufficient  to  place  the  burden 
upon  the  saloon  keeper  to  show  that  this  seller  was  not  in 
fact  his  agent. 

Bragg  v.  State,  15  Ga.  App.  623,  84  S.  E.  82. 

Where  a  defendant  was  lying  on  a  lounge  in  a  room  in  his 
house,  and  another  person  sold  liquor  in  his  presence,  the  law 
infers  in  the  absence  of  any  evidence  of  duress  or  insanity 
that  the  sale  was  made  with  his  consent  and  connivance. 
State  v.  Denton,  154  N.  C.  641,  70  S.  E.  839. 

That  the  indictment  charges  that  defendant,  a  druggist 
sold  liquor,  while  the  proof  shows  that  a  clerk  in  his  drug 
store  sold  it,  is  not  a  fatal  variance. 

State  v.  Clark  (Mo.  App.),  203  S.  W.  627. 

Evidence  on  prosecution  for  maintaining  a  liquor  nuisance 
at  a  drug  store  held  to  authorize  finding  that  defendant  by 
himself  or  through  another,  with  his  knowledge  and  consent, 
sold  intoxicating  liquor  as  a  beverage,  and  was  therefore 
guilty. 

State  v.  Synder  (la.),  171  N.  W.  8. 

Where  a  witness  asked  accused  to  sell  him  whisky,  and 
accused  told  his  eight  year  old  daughter  to  get  the  whisky, 
which  she  delivered  to  the  witness  in  the  presence  of  ac- 
cused, who  picked  up  the  money  put  on  the  table  by  the  wit- 
ness in  payment,  accused  was  guilty  of  selling  whisky  in  vio- 
lation of  Acts  1909,  Sp.  Sess.  p.  96,  section  37  of  which  pro- 


456  TITLE  II — SEC.  33  OF  ACT 

vides  that  the  act  shall  be  liberally  construed  to  accomplish 
the  purpose  thereof,  and  to  prevent  evasions  of  the  law. 
Lynn  v.  State,  10  Ala.  App.  223,  65  So.  92. 

To  Prove  Defendant  the  Seller  and  Not  Mere  Agent  to 
Procure,  etc. 

See  also  ante,  "Where  Accused  Claims  to  Have  Acted  as 
Agent  or  Procurer  for  Buyer,  and  Not  as  Seller" 
(Under  I,  "Presumption  and  Burden  of  Proof.") 

Under  an  indictment  for  unlawfully  selling  liquors,  proof 
that  defendant  only  purchased  or  aided  the  purchaser  pre- 
sents a  fatal  variance. 

Payne  v.  State,  124  Ark.  20,  186  S.  W.  612. 

In  such  prosecution  evidence  that  defendant  bought  the 
whisky  as  the  agent  of  another  and  delivered  it  to  him  and 
did  not  sell  it  to  such  person  could  not  form  the  basis  of  a 
conviction. 

Amonett  v.  State  (Tex.  Cr.  App.),  204  S.  W.  438. 

Where  accused  offered  no  evidence,  and  the  testimony  for 
the  state  showed  that  he  was  given  $2.00  to  buy  whisky  for 
another,  which  he  did,  delivering  the  whisky  and  the  change, 
an  instruction  that  if  accused  received  money  from  another, 
and  delivered  whisky  to  such  person,  he  was  guilty,  is  not 
misleading  in  view  of  the  evidence,  though  the  mere  deliv- 
ery of  the  whisky  itself  is  not  ordinarily  sufficient  to  con- 
stitute a  sale. 

Pope  v.  State,  108  Miss.  706,  67  So.  177. 

"If  the  defendant  had  proved  by  an  unimpeached  witness- 
that  he  did  in  fact  buy  the  whisky  from  James,  he  would 
have  carried  successfully  the  burden  of  rebutting  the  infer- 
ence that  he  was  himself  the  seller,  which  was  authorized  by 
his  receiving  the  money  and  delivering  the  whisky.  Bray  v. 
Commerce,  5  Ga.  App.  605,  63  S.  E.  596." 

Cannington  v.  State,  14  Ga.  App.  814,  82  S.  E.  356- 

Unlawful  Possession  as  Evidence  of  Sale. — The  Vir- 
ginia Act  of  1916,  c.  146,  §  65,  providing  that  possession  of 
a  certain  amount  of  intoxicating  liquor  is  priwa  facie  evi- 
dence that  it  is  possessed  for  the  purpose  of  sale,  does  not 


TITLE  II— SEC.  33  OF  ACT  457 

warrant  a  conviction  of  "selling"  ardent  spirits  merely  from 
the  fact  of  possession. 

Collins  -v.  Commonwealth,  123  Va.  815,  96  S.  E.  826, 
827. 

"The  prima  facie  presumption  raised  by  such  statute  from 
the  possession  by  any  person  of  any  ardent  spirits  at  any 
place  other  than  his  home  (which  the  evidence  for  the  com- 
monwealth in  the  instant  case  showed  was  true  of  the  ac- 
cused), extends  no  further,  however,  than  the  presumption 
'that  such  person  possesses  such  distilled  liquor  *  *  * 
for  the  purpose  of  sale.'  Pine  v.  Commonwealth,  121  Va. 

812,  93  S.  E.  652.     Such  possession  does  not  of  itself  fur- 
nish any  evidence  of  any  sale  actually  made,  it  being  prima 
facie  evidence  only  of  the  contemplated  selling  thereof  by 
such  possessor  of  the  liquor.     Such  possession,  with  such 
purpose,  does,  it  is  true,  constitute  in  itself  an  offense  un 
der  the  statute." 

Collins  v.  Commonwealth,  123  Va.  815,  96  S.  E.  826, 
829. 

Proof  of  Sale  as  Affected  by  Proof  of  Ownership.— 

"One  may  be  a  violator  of  the  law  prohibiting  the  sale  of 
intoxicants  as  well  when  the  intoxicant  sold  by  him  is  in 
fact  the  property  of  another  as  if  it  were  his  own  (Hendrix 
v.  State,  5  Ga.  App.  819,  63  S.  E.  939;  Toles  v.  State,  10 
Ga.  App.  444,  73  S.  E.  597;  Brown  v.  State,  11  Ga.  App. 

813,  7'6  S.  E.  360),  and  this  despite  the  fact  the  sale  may 
have  been  made  merely  as  an  accommodation  to  the  owner 
and  the  purchaser.    Hence  proof  that  an  intoxicant,  alleged 
to  have  been  sold  in  violation  of  law,  was  not  property  of 
the  person  who  delivered  it  in  pursuance  of  the  sale  is  a 
mere  circumstance  which  may  point  to  the  identity  of  the 
real  seller,  but  the  probative  value  and  effect  of  the  circum- 
stance is  for  the  jury." 

Pitts  v.  State,  17  Ga.  App.  836,  88  S.  E.  712. 
Accord:  Bird  v.  State  (Tex.  Cr.  App.),  206  S.  W.  844. 

Under  an  indictment  for  liquor  sold  prior  to  Acts  1917. 
p.  41,  it  was  not  sufficient  to  show  a  sale  of  liquor  of  which 
defendant  was  a  part  owner  by  another  part  owner,  because 


458  TITLE  II— SEC.  33  OF  ACT 

the  defendant  must  be  shown  to  have  had  an  interest  in  the 
sale. 

Holmes  v.  State,  132  Ark.  135,  200  S.  W.  1038. 

Proof  of  Time  and  Place  of  Sale. 

See  also  ante,  "I,  Scope  of  Inquiry;"  "V,  42  Evidence 
to  Show  Time  and  Place." 

An  accused  cannot  be  convicted  of  violating  the  prohibi- 
tion law  in  absence  of  proof  that  the  liquor  was  sold  with- 
in the  punishable  period. 

Doss  v.  State,  7  Ala.  App.  121,  61  So.  748. 

Likewise  the  venue  must  be  proved  to  the  extent  of  bring- 
mg  the  alleged  offense  within  the  territorial  jurisdiction  of 
the  court. 

Cagle  v.  State,  106  Miss.  370,  63  So.  672. 

Where  the  evidence  in  a  prosecution  for  unlawful  sale  of 
intoxicating  liquors  did  not  fix  the  venue  of  the  offense 
within  the  city  where  the  prosecution  was  begun  before  the 
mayor  as  ex  officio  justice  of  the  peace,  or  show  that  a  sale 
testified  to  occurred  prior  to  the  date  of  the  affidavit,  a  con- 
viction was  unauthorized. 

Cagle  v.  State,  106  Miss.  370,  63  So.  672. 

The  charge  of  keeping  prohibited  liquors  for  sale  could 
be  supported  by  evidence  of  defendant  doing  so  at  the  place 
named  in  the  written  charge  as  to  which  the  state  offered 
evidence,  or  at  another  place,  where  he  testified  he  kept  liq- 
uor which  he  received  during  the  period  covered  by  the  in- 
dictment. 

Brigham  v.  State,  8  Ala.  App.  400,  62  So.  980. 

The  indictment  having  been  returned  January  23,  1911, 
and  the  trial  had  at  the  May  term  1911,  testimony  that  the 
accused  sold  intoxicating  liquor  within  the  last  two  years 
does  not  show  with  sufficient  certainty  that  the  sale  took 
place  before  the  indictment  was  found. 

White  v.  State,  93  Ga.  47,  19  S.  E.  49. 
Abbott  v.  State,  11  Ga.  App.  43,  74  S.  E.  621. 


TITLE  II— SEC.  33  OF  ACT  459 

Where  in  a  prosecution  for  wrongful  sale  of  liquor,  the 
prosecuting  witness  testified  that  the  sale  took  place  during 
the  year  1910,  and  before  he  went  before  the  grand  jury, 
and  the  indictment  under  which  the  defendant  was  being 
tried  was  found  by  the  grand  jury  at  the  September,  1910, 
term  of  the  court,  and  the  trial  was  in  the  spring  1911,  the 
evidence  sufficiently  showed  the  time  of  the  sale. 
Carson  v.  State,  3  Ala.  App.  206,  58  So.  88. 

To  Sustain  Condemnation  or  Forfeiture. 

Armington  &  Sons  v.  State  (Ga.  App.),  100  S.  E.  15. 

Sufficiency  to    Show   Maintenance   of  Nuisance.— 

Evidence  consisting  principally  of  hearsay  testimony  is  in- 
sufficient to  prove  that  drug  store  proprietor,  alleged  to  be 
engaged  in  the  illegal  sale  of  liquor,  was  guilty  of  maintain- 
ing a  public  nuisance. 

Alton  v.  Salley  (Mo.),  215  S.  W.  241. 

In  suit  to  restrain  maintenance  of  public  nuisance,  where- 
in defendant  was  charged  with  illegal  sale  of  intoxicating 
liquors,  testimony  of  witnesses  who  had  seen  intoxicated 
persons,  and  who  had  merely  heard  or  suspected  that  the 
liquor  had  been  obtained  from  defendant,  but  had  no  actual 
knowledge  thereof,  is  practically  worthless. 
Alton  v.  Salley  (Mo.),  215  S.  W.  241. 

Sufficiency  to  Sustain  Alleged  Excessive  Sentence. 
— One  convicted  of  unlawfully  selling  intoxicating  liquor 
cannot  complain  that  the  maximum  sentence  is  excessive 
and  unusual  for  a  first  offense,  where  there  was  testimony 
that  this  was  not  his  first  offense,  and  where  the  jury  were 
justified  in  finding  from  the  testimony  that  he  put  the  state 
to  the  burden  and  expense  of  trying  him  when  he  was 
guilty,  that  he  produced  perjured  testimony  to  sustain  his 
defense,  and  that  the  same  was  obtained  by  a  campaign 
amounting  to  conspiracy  on  the  part  of  those  who  favored 
him. 

State  v.  Walters,  178  la.  1108,  160  N.  W.  821,  822. 

VIII.  Impeachment  of  Witnesses. 

See  also  ante,  "Character  and  Reputation  of  Accused  as 
a  Seller  of  Intoxicants." 


460  TITLE  II— SEC.  33  OF  ACT 

Questions  Tending  to  Incriminate  or  Degrade  Wit- 
ness, or  Prove  Him  Guilty  of  Other  Offenses. — Where 
one  of  the  alleged  purchasers  testified  for  the  state,  the  re- 
fusal to  permit  the  accused  to  prove  on  cross-examination 
that  he  had  been  arrested  for  violations  of  the  prohibition 
laws  and  imprisoned  was  erroneous,  especially  where  the 
evidence  was  conflicting  and  the  case  was  close. 

Amonett  v.  State  (Tex.  Cr.  App.),  204  S.  W.  438. 

Under  the  Acts  of  —  1915,  pp.  23,  24,  §  22,  subd.  13, 
approved  January  23d,  providing  that  in  a  trial  of  proceed- 
ings to  condemn  liquor  one  who  answers  claiming  an  in- 
terest in  liquors  seized,  shall  be  excused  from  attending  and 
testifying  in  court  on  the  ground  that  the  testimony  may 
tend  to  convict  (him  of  crime,  does  not  apply  to  voluntary 
statements  out  of  court. 

Phelps  v.  State  (Ala.  App.),  75  So.  877. 

Where  the  defendant,  being  prosecuted  for  selling  intoxi- 
cating liquors,  took  the  stand  as  a  witness,  it  was  proper  on 
cross-examination  for  the  prosecuting  attorney  to  ask  the 
defendant  concerning  the  commission  of  other  offenses,  for 
the  purpose  of  reflecting  upon  his  credibility. 
Nelson  v.  State  (Ark.),  212  S.  W.  93. 

In  a  prosecution  for  illegally  disposing  of  alcoholic  liquor, 
the  prosecuting  attorney  was  properly  permitted  on  cross- 
examination  to  ask  defendant  if  he  had  not  tried  to  escape, 
and  had  not  brought  some  saws  into  the  jail  and  given  them 
to  other  persons,  etc.,  since  a  witness  may  be  cross-examined 
as  to  his  particular  acts  relevant  to  the  impeachment  of  his 
character  for  truth,  though  disconnected  with  the  charge. 
Webb  v.  State  (Ark.),  212  S.  W.  567. 

Independent  Testimony;  Proof  of  Other  Offenses, 
etc. — Where  the  accused  testified  in  his  own  behalf,  the 
state  can  attack  his  general  reputation  and  show  that  he 
has  been  indicted  for  various  offenses,  including  sales  of 
intoxicating  liquors  in  prohibition  territory,  and  that  in- 
dictments therefor  are  pending  against  him,  to  affect  his 
credibility. 

Martoni  v.  State,  74  Tex.  Cr.  App.  90,  167  S.  W.  349. 


TITLE  II— SEC.  33  OF  ACT  461 

It  is  not  reversible  error  to  exclude  evidence  of  specific 
sales  of  liquor  by  a  witness  for  the  state,  where  such  wit- 
ness admits  that  he  has  made  many  sales  thereof. 

Dean  v.  State,  130  Ark.  322,  197  S.  W.  684. 

As  the  offense  of  selling  intoxicating  liquor  is  not  of 
those  offenses  involving  moral  turpitude,  a  witness  cannot 
be  impeached  by  proof  that  he  has  violated  this  law. 
Wheeler  v.  State,  4  Ga.  App.  325,  61  S.  E.  409.  The  court 
did  not  err  in  excluding  testimony  to  the  effect  that  a  wit- 
ness whom  it  was  sought  to  impeach  was  considered  a 
liquor  seller,  and  that  his  reputation  about  selling  liquor 
was  bad. 

Edenfield  v.  State,  14  Ga.  App.  401,  81  S.  E.  253. 

Impeachment  of  Co -Defendant. — In  a  prosecution  of 
two  for  unlawfully  conveying  intoxicating  liquors,  appel- 
lant's claim  of  error  in  admitting  evidence  to  impeach  his 
co-defendant,  who  was  used  as  a  witness  in  his  behalf,  was 
without  merit,  where  court  limited  jury's  consideration  of 
such  evidence  solely  to  impeaching  the  co-defendant  as  a 
witness,  and  where  impeaching  evidence  was  material  to 
the  issues. 

Hale  v.  State  (Okla.  Cr.  App.),  181  Pac.  735. 

Evidence  to  Show  Bias  of  Detective  Accomplice,  etc. 

See    also    ante,    "Evidence   of    Accomplice,    Detective, 
etc. 

In  a  prosecution  for  the  sale  of  liquor,  a  witness  for  the 
state  may  be  cross-examined  as  to  whether  to  his  knowl- 
edge one  in  whose  employ  he  admittedly  was,  did  not  take 
an  active  interest  in  the  prosecution. 

Harrison  i:  State,  12  Ala.  App.  284,  68  So.  532. 

But  the  court  properly  refused  to  require  a  witness  to 
answer  whether  he  had  not  taken  a  "pretty  active  stand" 
on  the  whisky  question,  and  prosecuted  people  for  violating 
the  prohibitory  law,  as  too  general  to  show  bias  of  the 
witness  against  accused. 

Coates  v.  State,  5  Ala.  App.  182,  59  So.  323. 


462  TITLE  II— SEC.  33  OF  ACT 

Where  a  witness  for  the  state  testified  that  he  bought 
whisky  from  defendant  under  instruction  from  an  em- 
ployee of  the  excise  commission  of  the  city,  who  was  en- 
gaged in  running  down  blind  tigers,  and  that  the  commis- 
sioner had  not  paid  him  specially  for  buying  whisky  from 
the  defendant,  defendant  was  entitled  on  cross-examina- 
tion to  inquire  what  he  was  to  be  paid  for  it. 

Harwell  v.  State,.  11  Ala.  App.  188,  65  So.  702. 

It  was  not  error  to  exclude  testimony  of  the  prosecuting 
witness  on  cross-examination  that  he  was  told  by  police  offi- 
cers that  they  would  turn  him  loose  if  he  told  where  he 
got  the  beer,  since  such  testimony  had  no  material  bearing 
as  to  whether  the  witness  was  falsely  accusing  defendant. 

State  v.  Walters,  178  la.  1108,  160  N.  W.  821,  822. 

In  a  prosecution  for  a  second  violation  of  the  prohibi- 
tory liquor  laws,  the  refusal  to  permit  defendant,  on  cross- 
examination  of  .prosecuting  witness  to  ask  if  he  was  not 
paid  to  secure  evidence  in  the  case,  intended  to  show  wit- 
nesses' interest,  was  error. 

Files  v.  State   (Okla.  Cr.  App.),  182  Pac.  911. 

Limiting  Number  of  Impeaching  Witnesses. — In  a 
prosecution  for  manufacturing  whisky,  court  did  not  abuse 
its  discretion  in  limiting  the  number  of  witnesses  for  the 
purpose  of  impeaching  testimony  of  prosecuting  witness 
to  five  in  number,  especially  where  he  announced  his  inten- 
tion to  so  do  before  any  of  the  witnesses  were  called. 

Kindrix  v.  State  (Ark.),  212  S.  W.  84. 

Evidence    to  Sustain    Reputation  of    Accused. — In 

prosecution  for  illegal  sale  of  intoxicating  liquors,  where 
the  prosecution  does  not  attack  accused's  reputation  for 
truth  and  varacity,  evidence  to  sustain  his  credibility  is 
not  admissible. 

Baumgartner  v.  State  (Ariz.),  178  Pac.  30. 


TITLE  II— SEC.  35 
Effect  of  This  Act  on  Existing  Laws. 

SEC.  35.  All  provisions  of  law  that  are  inconsistent 
with  this  act  are  repealed  only  to  the  extent  of  such 
inconsistency  and  the  regulations  herein  provided  for 
the  manufacture  or  traffic  in  intoxicating  liquor  shall 
be  construed  as  in  addition  to  existing  laws.  This  Act 
shall  not  relieve  anyone  from  paying  any  taxes  or  other 
charges  imposed  upon  the  manufacture  or  traffic  in 
such  liquor.  No  liquor  revenue  stamps  or  tax  receipts 
for  any  illegal  manufacture  or  sale  shall  be  issued  in 
advance,  but  upon  evidence  of  such  illegal  manufacture 
or  sale  a  tax  shall  be  assessed  against,  and  collected 
from,  the  person  responsible  for  such  illegal  manufac- 
ture or  sale  in  double  the  amount  now  provided  by  law, 
with  an  additional  penalty  of  $500  on  retail  dealers  and 
$1,000  on  manufacturers.  The  payment  of  such  tax  or 
penalty  shall  give  no  right  to  engage  in  the  manufac- 
ture or  sale  of  such  liquor,  or  relieve  anyone  from  crim- 
inal liability,  nor  shall  this  Act  relieve  any  person  from 
any  liability,  civil  or  criminal,  heretofore  or  hereafter 
incurred  under  existing  laws. 

The  commissioner,  with  the  approval  of  the  Secre- 
tary of  the  Treasury,  may  compromise  any  civil  cause 
arising  under  this  title  before  bringing  action  in  court; 
and  with  the  approval  of  the  Attorney  General  he  may 
compromise  any  such  cause  after  action  thereon  has 
been  commenced. 

State  Regulations.— Subsequent  federal  legislation 
having  made  certain  shipments  of  whisky  illegal  and  placed 
them  under  the  police  power  of  the  state,  the  state  may 


464  TITLE  II— SEC.  35  OF  ACT 

make  further  regulations  not  conflicting  with  but  in  addi- 
tion to  the  federal  requirements. 

State  v.  Seaboard  Air  Line  R.  Co.,  169  N.  C.  295,  84 
S.  E.  283. 

Webb-Kenyon  Act. — The  movement  of  liquors  in  in- 
terstate commerce  for  purposes  prohibited  by  the  laws  of 
the  state,  having  expressly  been  divested  of  its  immunity 
as  such  by  the  Webb-Kenyon  Act,  the  enforcement  of  the 
state's  prohibition  laws  does  not  conflict  with  the  com- 
merce clause  of  the  federal  Constitution. 
State  v.  Frazee  (\V.  Va.),  97  S.  E.  604. 

The  Webb-Kenyon  Law  March  1,  1913,  withdraws  from 
the  operation  and  effect  of  the  commerce  clause  of  the  fed- 
eral Constitution  and  brings  within  the  police  power  of  the 
state,  as  soon  as  they  cross  the  state  line,  shipments  of  in- 
toxicating liquors  into  prohibition  territory  with  intent  to 
violate  the  laws  thereof. 

State  v.  Seaboard  Air  Line  R.  Co.,  169  N.  C.  295,  84 
S.  E.  283. 

Any  immunity  from  the  prohibitions  of  W.  Va.  Code, 
1915,  chap.  7,  §  7,  laws  1915,  2d  Ex.  Sess.  p.  660,  §  34,  against 
the  shipment  from  without  the  state  of  intoxicating  liquors 
intended  for  personal  use,  and  the  receipt  and  possession 
of  liquors  so  transported,  which  the  interstate  character  of 
such  a  shipment  might  otherwise  give,  was  taken  away  by 
the  provisions  of  the  Webb-Kenyon  Act  of  March  1,  1913 
(37  Stat.  at  L.  699,  Chap.  90,  Comp.  Stat.  1913,  8739), 
forbidding  the  interstate  shipment  or  transportation  of  in- 
toxicating liquor  which  is  intended  by  any  person  inter- 
ested therein  to  be  received,  possessed,  sold,  or  in  any  man- 
ner used,  either  in  the  original  package  or  otherwise,  in 
violation  of  the  law  of  the  state  to  which  the  liquor  is 
transported,  although  individual  use  may  not  have  been 
prohibited  by  the  West  Virginia  law. 

Clark  Distilling  Co.  v.  Western  Maryland  R.  Co.,  242 
U.  S.  311,  37  Sup.  Ct.  180. 

Constitutionality. — There  is  nothing  repugnant  to  the 
due  process  of  law  clause  of  U.  S.  Const.  5th  Amend,  in 


TITLE  II— SEC.  35  OF  ACT  455 

the  provision  of  the  Webb-Kenyon  Act,  March  1  1913 
(37  Stat.  at  L.  699,  chap.  90,  Comp.  State.  1913,  8739), 
under  which  an  interstate  shipment  of  the  intoxicating  liq- 
uor, though  intended  for  personal  use,  may  be  subjected  to 
the  state  prohibitory  laws,  and  Congress  did  not  exceed 
its  power  under  the  commerce  clause  enacting  the  provision 
of  the  Webb-Kenyon  Act  of  March  1,  1913  (37  Stat.  at 
L.  699,  chap.  90,  Comp.  Stat.  1913,  8739),  forbidding  the 
interstate  shipment  or  transportation  of  intoxicating  liquor 
which  is  intended  by  any  person  interested  therein  to  be 
received,  possessed,  sold,  or  in  any  manner,  used,  either  in 
the  original  package  or  otherwise,  in  violation  of  any  law 
of  the  state  into  which  the  liquor  is  transported. 

Clark  Distilling  Co.  v.  Western  Maryland  R.  Co  ,  242 
U.  S.  311,  37  Sup.  Ct.  180. 

The  Webb-Kenyon  Law  March  1,  1913,  c.  90,  37  Stat. 
699  (U.  S.  Comp.  St.  1913,  8739)  prohibiting  the  trans- 
portation from  one  state  or  territory  into  another  of  in- 
toxicating liquor  intended  by  any  person  interested  there- 
in to  be  received,  possessed,  sold  or  used  in  the  original 
package  or  otherwise,  in  violation  of  any  law  of  such  state 
or  territory,  is  constitutional. 

State  v.  Seaboard  Air  Line  R.  Co.,  169  N.  C.  295,  84 
S.  E.  283. 

Reed-Jones  Amendment. — The  Reed-Jones  Amend- 
ment, §  5  (U.  S.  Comp.  St.  1918,  §§  8739a,  10387a-10387c), 
declaring  that  whoever  shall  cause  intoxicating  liquors  to 
be  transported  in  interestate  commerce,  except  for  certain 
purposes,  into  any  state  the  laws  of  which  prohibit  the  sale 
and  manufacture  of  intoxicating  liquors,  shall  be  punished, 
did  not  deprive  the  state  of  Virginia  of  jurisdiction  to  pros- 
ecute one  who  brought  intoxicating  liquors  into  the  state  in 
violation  of  prohibition  law,  where  the  bringing  of  such 
liquor  into  the  state  was  not  shown  to  constitute  interstate 
commerce. 

Sickel  v.  Commonwealth  (Va.),  97  S.  E.  783. 


Ind 


ex 


ABATEMENT  OF  NUISANCE,  pp.  178,  192. 

See  "Nuisance;"  ''Injunction." 
ACTS  PERMITTED,  p.  12. 
ACTS  PROHIBITED,  pp.  12,  95. 
ADMISSIONS,  p.  373. 
ADVERTISEMENTS,  pp.  25,  162. 

Newspapers,  p.  163. 
AFFIDAVIT,  p.  237. 
ALCOHOL,  p.  86. 
ALCOHOLIC  PERCENTAGE,  p.  44. 

Burden  of  Proof,  p.  44. 
ALE,  p.  85. 

ALLEGATIONS,  p.  38. 

AMENDMENT  TO  CONSTITUTION,  p.  i. 
AMENDMENTS  OF  PLEADINGS,  pp.  278,  279. 
ANALYSIS,  p.  15. 

APPEAL  AND  ERROR,  pp.  324,  325. 
"APPLICATION,"  pp.  10,  78. 
APPLICATION  FOR  PERMIT,  p.  18. 
ARGUMENT,  p.  288. 
ARREST,  p.  279. 

ARREST  OF  JUDGMENT,  pp.  319,  320,  321. 
ARTICLES  FOR  MANUFACTURE,  p.  32. 
ASSISTANT  OR  AGENT,  pp.  44,  79. 
AUTHORITY  OF  COMMISSIONS,  p.  10. 
AUTHORITY  OF  AGENTS,  p.  10. 
BARROOM,  p.  106. 
BEER,  pp.  88,  89,  90. 
BEVERAGES  PERMITTED,  p.  9. 
BEVERAGES  PROHIBITED,  p.  9. ' 
BEVERAGE  PURPOSES,  p.  14. 
BILL  OF  PARTICULARS,  p.  38. 
BITTERS,  p.  85. 
BLIND  TIGER,  p.  107. 
BOND,  pp.  10,  78. 
BONDED  LIQUOR,  p.  41. 
BOOTLEGGERS,  p.  106. 
BURDEN  OF  PROOF,  pp.  130,  332. 
CANAL  ZONE,  p.  54. 
CARRIERS,  p.  24. 

Delivery,  p.  24. 

Duties,  pp.  24,  159,  160. 

Records,  pp.  24,  154. 


468  INDEX 

CIDER,  pp.  13,  37,  91. 
CIRCUMSTANTIAL  EVIDENCE,  p.  372. 

Weight  of,  p.  431. 
See  "Evidence." 
CIVIL  ACTIONS,  p.  27. 
CLUB,  pp.  134,  135. 

Employee,  p.  135. 

Member,  p.  135. 
COMMISSIONER  OF  INTERNAL  REVENUE,  pp.  10,  78. 

Duties,  p.  11. 
COMPROMISE,  p.  41. 

CONCURRENT  POWER  OF  STATES,  p.  1. 
CONFESSIONS,  p.  373. 
CONFISCATED  LIQUORS,  p.  35. 

See  "Search  and  Seizure." 

CONFISCATION  OF  CONVEYANCE,  p.  213. 
CONFLICTING  STATE'S  LAWS,  p.  68. 
CONSIGNEE,  pp.  24,  158. 

Oath,  p.  24. 
CONSIGNOR,  p.  24. 

Duty,  p.  24. 

Information  on  Package,  pp.  25,  161. 
CONSTITUTIONAL  AMENDMENT,  pp.  1,  57. 
CONSTITUTIONALITY  OF  STATUTES,  p.  57  and  seq. 
CONSTRUCTION,  pp.  12,  95,  96. 

Liberal,  p.  95. 

Strict,  pp.  97,  98. 

Statutory  Signification,  p.  97. 

CONSTRUCTION  OF  SIMILAR  STATUTES,  p.  74. 
CONTEMPT,  p.  31. 

Appeal,  p.  193. 

Good  Faith,  p.  196. 

Jury  Trial,  p.  197. 

Proceeding,  pp.  195,  196. 

Punishment,  p.  32. 
CONTINUANCE,  p.  286. 
CONTRACTUAL  RIGHTS,  p.  73. 
COSTS  AND  EXPENSES,  p.  330 
COUPONS,  p.  105. 
CREDIT  SALE,  p.  106. 

See  "Sale." 

"DECOCTIONS,"  p.  84. 
DEFENSES,  p.  280. 
DEFINITIONS,  p.  77. 

Dictionary,  p.  79. 

Ejusdem  Generis,  p.  81. 

Power  to  Define,  p.  80. 


INDEX  469 


DENATURED  SPIRITS,  p.  12. 
DESCRIPTION  OF  LIQUOR,  pp.  363,  364. 

See  "Indictments." 
DISTILLATION,  p.  99. 
DRUGGISTS,  pp.  23,  145. 
See  "Pharmacist." 

Intent,  p.  151. 

License,  p.  151. 

Sale  of  Stock,  p.  147. 

Search  Warrant,  p.  153. 

Unauthorized,  p.  146. 
DURATION  OF  PERMITS,  p.  16. 

See  "Permits." 

ECCLESIASTICAL  MANUFACTURE,  p.  19. 
ELECTION,  p.  287. 

ENUMERATED  LIQUORS,  pp.  81,  82. 
ERROR,  pp.  326,  327. 
EVIDENCE,  p.  38. 

See  "Analysis,"  p.  331. 

Admissibility,  Relevancy  and  Competency,  p.  368. 

Alternative  Charges,  p.  370. 

Character  of  Business,  p.  395. 

Copies  of  Records,  p.  40. 

Detective,  Accomplice,  etc.,  p.  433. 

Former  Trial,  p.  374. 

Identity  of  Liquor,  p.  416. 

Intent,  p.  376. 

Intoxicating  Character,  pp.  344,  410,  435. 

Judicial   Notice,  p.  355. 

Of  Sale,  pp.  440,  443. 

Ordering  and  Receiving,  p.  419. 

Other  Sales,  p.  402. 

Ownership,  p.  390. 

Prescriptions,  p.  429. 

Presumptions  and  Burden  of  Proof,  p.  333. 

Proof  of  Time,  p.  356. 

Question  of  Law  and  Fact,  p.  353. 

Records,  p.  422. 

Reputation,  p.  400. 

Tax  Receipts,  p.  409. 

To   Prove  Manufacture,  p.  437. 

Transportation,  p.  451. 

Variance,  p.  359. 

Weight  and  Sufficiency,  p.  431. 

Witnesses,  p.  459. 
EXCHANGE,  p.  119. 


470  INDEX 

EXTENSION  OF  PERMIT,  p.  17. 

FALSE  CONSIGNEE,  p.  25. 

FALSE  STATEMENT  ON  PACKAGE,  p.  25. 

FLAVORING  EXTRACTS,  pp.  13,  141. 

FORFEITURE,  pp.  33,  34,  35. 

See  "Search   and   Seizure." 

Constitutionality,  pp.  214,  215. 

Construction  of  Statute,  pp.  217,  218. 

Intervention  by  'Claimant,  pp.  230,  231. 

Liens,  pp.  226,  227. 

Proceedings,  p.  224. 

Property  Liable,  pp.  218,  219,  220. 
FORMER  JEOPARDY,  pp.  283,  375. 
FORMULA  FOR  MAKING,  p.  26. 
FRUIT  JUICES,  p.  37. 
FURNISHING,  p.  119. 
GIFT,  p.  119. 
HOSPITALS,  p.  16. 
IMMUNITY,  p.  37. 

IMPEACHMENT  OF  WITNESSES,  p.  459. 
IMPORTATION— RIGHT  TO  PROHIBIT,  p.  65. 
IN-CONSISTENT  LAWS,  p.  463. 
INCRIMINATION,  p.  37,  373. 
INDICTMENTS,  pp.  38,  237. 
See  "Analysis,"  p.  236. 

Amendments,  p.  278. 

Averments,  pp.  38,  238,  247,  256,  259.  263. 

Bill  of  Particulars,  p.  246. 

Certainty,  p.  240. 

Clerical   Errors,  p.  240. 

Consideration,  p.  264. 

Counts,  p.  254. 

Intent,  pp.  238,  239. 

Intoxicating  Character,  pp.  268,  269. 

Kind  of  Liquor,  p.  268. 

Misjoinder,  'Pp.  250,  251. 

Names,  pp.  264,  265,  266,  267. 

Negative  Averments,  p.  247. 

Price,  p.  263. 

Prior  Offenses,  p.  270. 

Quantity,  p.  263. 

Scienter,  p.  238. 

Special  Offenses,  pp.  271,  272. 

Specification,  p.  238. 

Statutory  Language,  p.  241. 

Surplusage,  p.  241. 

Time,  pp.  259,  261. 


INDEX  471 

INDUSTRIAL  ALCOHOL,  p.  45. 

Conflicting  Statutes,  p.  53. 

"Container,"   p.   46. 

Definition,  p.  45. 

Denaturing,  p.  48. 

Distilling,  p.  48. 

Existing  Laws,  pp.  48,  53. 

Penalties,  pp.  50,  51. 

Permits,  p.  46. 

Procedure,  p.  48. 

Seizure,  p.  53. 

Tax,  pp.  47,  52,  53. 

Transfer,  p.  47. 

Vinegar  Distilled,  p.  50. 

Warehouses,  p.  46. 
INFORMATION,  p.  237. 
See  "Indictments." 

INFORMATION  REGARDING  LIQUOR,  pp.  27,  165. 
INGREDIENTS  FOR  MAKING,  p.  26. 
INJUNCTION,  pp.  28,  171. 

See    "Nuisance" — "Contempt." 

Abatement,  p.  29. 

Advertising   Liquor,   p.   185. 

Allegations,  p.  183. 

Bond.  p.  29. 

Bootlegging,  p.  177. 

Burden  of  Proof,  p.   188. 

Club,  pp.   176,   177. 

Contempt   Proceedings,  p.  31. 

Costs,  p.  188. 

Criminal  Conviction,  p.  172. 

Cross  Petition,  p.  185. 

Defenses,  pp.  185,  186. 

Denial,  p.  191. 

Evidence,  p.  180. 

Fees,  p.  31. 

Forfeiture  of  Lease,  p.  31. 

Hearing,  p.  188. 

Intent,  p.  31. 

Issuance,  pp.  189,   190. 

Jurisdiction,  p.  172. 

Jury,  pp.  182,  188. 

Nature  of  Proceeding,  p.  172 

Notice,  p.  181. 

Order,  p.  29. 

Petition,  p.  J82. 


472  INDEX 

INJUNCTION— Continued. 
Place,  pp.  177,  179. 
Prayer  for  Relief,  p.  185. 
Sale,  pp.  174,  179. 
Statutory  Regulation,  p.   173. 
Temporary  Injunction,  p.  29. 
Traffic  in  'Liquor,  p.  30. 
Transportation,  p.  179. 
Trial,  p.  29. 
Violation,  p.  31. 

INNOCUOUS  BEVERAGES,  p.  80. 
INTENT,  p.  136. 

As  Defense,  p.  280. 

Good  Faith,  p.  138, 

INSPECTION  OF  RECORDS,  p.  39. 
INSTRUCTIONS,  p.  292,  et  seq. 
"INTOXICATING  LIQUOR,"  p.  84. 
INVALIDITY  OF  PART  OF  ACT,  p.  41. 
JAMAICA  GINGER,  p.  85. 
JUDICIAL  NOTICE,  p.  353. 

Of  Alcoholic  Percentage,  p.  92. 
JURISDICTION,  p.  286. 
JURY,  p.  292. 

Questions  for,  p.  353. 
KNOWLEDGE,  p.  137. 

Of  Intoxicating  Character,  p.  136. 

Question  of  Fact,  p.  139. 
LABELS,  p.  23. 

LARCENY  OF  LIQUOR,  p.  72. 
LAW  AND  FACT,  p.  353. 
LEASE,  p.  31. 
"LIQUOR,"  p.  83. 
"LIQUID,"  p.  83. 

"LIQUOR"  OR  "INTOXICATING  LIQUOR,"  p.  77. 
LOAN,  p.  118. 

MALT  LIQUOR,  pp.  92,  93. 
MANUFACTURE,  pp.  1,  11,  98. 

Aiding  and  Abetting,  p.   100. 

Attempt,  p.  99. 

Definition,  p.  99. 

Personal  Use,  p.  99. 

Right  to   Prohibit,  p.  67. 

Wine  Making,  p.  101. 
MANUFACTURE  "OR"  SALE,  p.  98. 
MANUFACTURING  PURPOSES,  p.  13. 
MANUFACTURING  RECORDS,  p.  23. 


INDEX  473 


MEDICINE,  p.  20. 

See  "Physicians"— "Prescriptions." 
Necessity  for,  p.  20. 

Amount  Permissible,  p.  20. 

MEDICINAL  PREPARATIONS,  pp.  13,  139    152 
MIXTURES,  p.  90. 
NEAR  BEER,  p.  87. 
NEW  TRIAL,  pp.  321,  322. 
NON-ALCOHOLIC  BEVERAGES,  p.  41. 

Right  to   Prohibit,  pp.  65,  66. 
NOTICE,  pp.  14,  15. 
NUISANCE,  pp.  28,  167,  171. 
See  "Injunction." 

Abatement,  p.  170. 

Continuance,   p.   168. 

Elements  of,  p.  180. 

Lessee,  p.  169. 

Property,  p.  168. 

Punishment,  p.  28. 
OFFICERS,  pp.  36,  289. 

General   Powers,  p.  36. 

Misconduct,  p.  289. 
ORDERS  FOR  LIQUOR,  p.  27. 
PATENT  MEDICINES,  p.  13. 
"PATIENT,"  p.  145. 
PEACH   BRANDY,  p.  86. 
PENALTY,  pp.  36,  234. 

Constitutionality,  pp.  234,  235. 

Construction,  p.  235. 

PERCENTAGE  OF  ALCOHOL,  pp.  9,  42,  77,  80. 
PERMIT,  pp.  10,  13,  78,  152. 

Bond,  p.  18. 

Form,  p.  18. 

Necessity  for,  p.  16. 

Refusal,  p.  17. 

Restrictions,  p.  19. 

Revocation,  p.  15. 

Specifications,  p.   17. 

Violation  of,  pp.  21,  36. 
"PERSON,"  pp.  9,  78. 
PHARMACIST,  pp.  17,  145. 
See  "Druggists." 

Records,  p.  20. 
PHYSICIAN,  pp.  17,  20,  142. 

Record,  p.  20. 
POTABILITY,  p.  87. 


474  INDEX 

POTENTIALLY  ALCOHOLIC,  p.  94. 
PORTER,  p.  85. 

POSSESSION,  pp.  12,  38,  40,  131,  201. 
Agent,  p.  203. 
Amount,  p.  134. 
As  Evidence,  pp.  38,  381. 
Apparatus,  p.   133. 
Before  Law  Prohibiting,  pp.  62,  63. 
Burden  of  Proof,  p.  39. 
Definition,  pp.  203,  205. 
Dwelling,  pp.  39,   131,  204. 
Innocent  Possession,  p.  132. 
Intent,  p.  202. 
Jointly,  p.   133. 
Lawfully  Acquired,  p.  207. 
Ownership,  p.  202. 
Physical  Possession,  p.  132. 
Premises,  p.  204,  389. 
Prima  Facie  Unlawful,  p.  38. 
Proof  of  Lawfulness,  p.  427. 
Temporary,  p.  132. 
Time  of  Acquiring,  p.   131. 
For  Sale,  p.  133. 

PRELIMINARY  TRIAL,  p.  11. 
PRESCRIPTIONS,  pp.  16,  19,  20,  142. 
See  "Druggists" — "Pharmacists." 
Affidavit,  p.  149. 
Amount,  pp.  140,  142. 
Blanks,  pp.  20,  143. 
Cancellation,  p.  142. 
Contents  of,  p.  148. 
Evidence  of,  p.  149. 
Good  Faith,  p.  147. 
Necessity  for,  p.  142. 
Records  of,  p.  142. 
Refilling,   p.   20. 
PRESUMPTIONS,   pp.   333,   340,   352. 

See  "Evidence." 
Agency,  p.  346. 

Burden  on  State,  When,  p.  349. 
Dwelling,  p.  340. 
Effect,  p.  341. 
Generally,  p.  349. 
Intoxicating  Character,  p.  81. 
Possession,  p.  334. 
Tax  Receipts,  p.  349. 
Weight,  p.   335. 


INDEX  475 


PRICE  LISTS,  p.  26. 
PRIOR  CONVICTION,  p.  37. 
PRIVATE  DWELLING,  p.  32. 
PROPERTY  RIGHTS  IN  LIQUOR,  p.  32. 
PROPERTIES  OF  LIQUOR,  p.  81. 
PROSECUTION,  p.  11. 
PUBLIC  POLICY,  p.  97. 
PUNISHMENT,  pp.  36,  234. 
PURCHASE,  p.  118. 

RATIFICATION  OF  AMENDMENT,  p.  i. 
RECEIVING  FROM  CARRIER,  p.  120. 
RECORDS,  pp.  10,  22. 

Copies  as  Evidence,  p.  40. 

Inspection,  p.  39. 
REGULATION,  p.  10,  78. 
RELEVANCY,  pp.  368,  369. 

See  "Evidence." 

REPEAL  OF  CONFLICTING  LAWS,  p.  40. 
REPEAL  AND  AMENDMENTS,  p.  70. 

RES  GEST;E,  p.  371. 

REVIEW  BY  COURT,  pp.  16,  22. 
REVOCATION  OF  PERMIT,  p.  22. 
SACRAMENTAL  WINE,  pp.  18,  130,  141. 
SALE,  pp.  1,  12,  101. 

Accessories,  pp.  114,  115,  116. 

Agent,  pp.  107,  108,  109. 

Aiding  and  Abetting,  pp.  110,  111,  112. 

Delivery,  p.  102. 

Intermediary,   p.    113. 

Ownership  of  Liquor,  p.  103. 

Place,  p.  104. 

Shams,  pp.  104,  105. 

What  Constitutes,  p.  101. 

With  Meals,  p.  105. 
SAMPLES,  p.  164. 
SCIENTER,  p.  139. 

See  "Evidence." 

SENTENCE  AND  PUNISHMENT,  pp.  36,  323. 
SEARCH,  pp.  32,  201. 

Private  Dwelling,  pp.  32,  201. 

Unlawful  Search,  p.  388. 

Without  Warrant,  p.  209. 
SEARCH  WARRANTS,  pp.  11,  32,  207. 

Officer's  Return,  p.  387. 

Sufficiency,  pp.  209,  210,  211. 


476  INDEX 

SEIZURE,  p.  32. 

Innocent  Owner,  p.  45. 
SEIZURE  OF  VEHICLE,  p.  33. 

Advertisement,  p.  34. 

Bond  for  Return,  p.  33. 

Liens  on  Vehicle,  p.  34. 

Sale  of  Vehicle,  p.  34. 

SEIZURE  IN  TRANSPORTATION,  p.  213. 
SOLICITING  ORDERS,  pp.  165,  418. 
SPECIFICATIONS  IN  LABELS,  p.  23. 
"SPIRITUOUS,"  p.  86. 
STATE  REGULATIONS,  p.  463. 
STATUTORY  DEFINITIONS,  p.  9. 
STATUTORY  SIGNIFICATION,  p.  84. 
"STILL  BEER,"  p.  87. 
SUBSTITUTES,  p.  91. 
TAXES,  p.  40. 
TICKETS,  p.  105. 
TITLE  TO  ACT,  pp.  2,  71. 
TIME  ACT  EFFECTIVE,  p.  55. 
TOILET  PREPARATIONS,  p.  13. 
TRANSPORTATION,  pp.  1,  12,   120. 

Accessory,  p.  120. 

Agent,  p.  125. 

Automobile,  p.  122. 

Carrier   to   Transfer   Company,   p.    123. 

Consignor,  p.  125. 

Delivery,  p.  125. 

Destination,  p.  126. 

Distance,   p.   128. 

Draying  from  Depot,  p.  126. 

Exterritorial,  p.  125. 

Intent,  p.  124. 

Interstate  Commerce,  p.  125. 

Jury   Question,   p.   130. 

Lawful  When,  p.  122. 

On  Own  Premises,  p.  124. 

On  Person,  p.  120. 

Private   Carrier,   p.   124. 

Reed  Amendment,  pp.  126,  127,  128. 

Through  State,  p.  129. 

Train  to  Depot,  p.  123. 

Unlawful  Use,  p.  121. 

Within  State,  p.  122. 
UNSPECIFIED  LIQUOR,  p.  83. 


INDEX  477 


USE,  pp.  70,  136. 

In  Manufacture,  p.  13. 

Right  to  Prohibit,  p.  70. 
UTENSIL  FOR  MANUFACTURE,  p.  26. 
VARIANCE,   pp.   359,   360,    361,   362 
VEHICLE,  p.  33. 

Automobile,  p.  220. 
VENUE  OF  TRIAL,  p.  38. 
VERDICT,  p.  317. 
VINEGAR,  p.  13. 
"VINOUS  LIQUOR,"  p.  91. 
VIOLATION  OF  PERMIT,  p.  21. 
See  "Permit." 

Procedure  for,  p.  21. 
WAR  PROHIBITION,  pp.  2,  75,  76. 
WAREHOUSE  RECEIPTS,  p.  12. 
WARRANT,  p.  11. 
"WHISKY,"  pp.  85,  91,  92. 
WITNESSES,  p.  459. 
See  "Evidence." 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNH. 

LOS  ANGELES 


A    000  681  519    5 


